EFTA00191587

and 
were brought by 
and their aerSrnents were made 
between Kellen and 
performed one massage and 
performed two. 
For both girls, Epstein masturbated and tried to touch them but they refused. With 
S., Epstein became upset that she wouldn't engage in more sexual activity and he told 
not to bring her back. Because of the highly probatiuS of this testimony related to 
Epstein's intent (i.e., no sex/no money), I believe that 
testimony will be admitted 
under Rule 404(b). 
IM L. has been identified as the plaintiff in the second civil lawsuit filed against 
Epstein by Jeff H
She was 16 aid 
when she first went to Epstein's home and
wasrecruited by 
L., one of 
friends. 
L. only went to Epstein's 
home once, never told Epstein her age, and was never contacted directly by any of the 
defendants. 
contribution to the indictment is outweighed by the presence of the 
civil suit, so she has been removed. 
is another girl whom 
Epstein's home. She has admitted to pr 
g massages and that Epstein touched her reas 
and attempted to touch her vagina. 
denies any additional sexual activity. 
recruited one other girl, Shasdy I., when Shasdy was 17. Shas 
in Venezuela and has 
not responded to efforts to contact her. The concern with 
is that she will never 
completely admit to the sexual activity that occurred. Phone records show that 
spoke 
with Sarah Kellen and Nadia Marcinkova more than 60 times. Yet 
insists that she 
never provided massages fully nude and Epstein never digitally penetrated her, touched her 
vagina, or used the massager/vibrator on her. From all of the evidence, it is highly unlikely 
that Epstein would have allowed 
to return so frequently without increasing the level 
of sexual activity. As one of the other girls reported, 
reputation at school was that 
she "was a virgin the day she graduated." I believe that it will be too difficult for her to give 
up that persona and admit to everything that happened. 
recruited. 
was 16 when she first went to 
will still remain as a witness, because she can corroborate many of the 
statements made by Vanessa Zara often drove Mi 
to Epstein's home and she knew 
that Epstein gave a vibrator to 
and that Epstein offered to take 
to New York 
and to his island. 
knew of other gifts given to 
, including 
Secret 
lingerie, birthday flowers, and a rental car. 
victim. A motion may be filed before Judge Marra on the issue of inappropriate contact with and 
harassment of M. 
3 
EFTA00191647

The one 
recruit whom I have kept in the indictment is 
Z. She is 
currently attending Lynn University on a soccer scholarship. The documentary evidence 
related to 
is strong — numerous message pads, including one saying that 
will be lat 
of soccer practice, car rental records, 156 calls with Sarah Kelle 
with Adrian Ross, 13 calls to Epstein's house, and 20 calls to Epstein's Palm Beach 
property manager. Epstein also gave 
a vibrator and lingerie for her 18th birthday. 
Although I never intended to use 
M. as a witness, I did refer to her as one of 
the Jane Does in the indictment in connection with a massage that she gave together with 
L. ( 
can testify as an eyewitness.) In light of the outcry from Epstein's 
attorneys that 
does not consider herself a victim, I have used her initials instead. 
II. 
VICTIMS ADDED TO THIS INDICTMENT 
A. a
l H. (Jane Doe #41. 
C. (Jane Doe #5), and 
P. (Jane Doe #61 
Jane Does #4 and #5 traveled to Epstein's home together while they were students at 
Wellington High School. Both had heard at the school that you could get money for 
massaging Epstein. When they arrived at Epstein's home, they were met by Kellen, who 
took them on a tour of the house before leading them to Epstein's bedroom. Both sat on the 
couch until Epstein arrived. He arrived shortly thereafter and took a shower. Before he 
stepped into the shower, Epstein told the girls to get undressed. Jane Doe #4 removed her 
top and pants; Jane Doe #5 only removed her top. 
After the girls massaged his back and legs, Epstein turned over and began 
masturbating. Epstein tried to reach down Jane Doe #5's pants, and she backed away. 
Epstein then instructed Jane Doe #4 to play with his nipples while he masturbated. After he 
ejaculated, Epstein told the girls to get dressed. He paid each girl $200. 
Afterwards, Kellen attempted to contact Jane Doe #5 multiple times to set up 
appointments, but she refused. Jane Doe #4 returned, and on her second visit she massaged 
Epstein alone while wearing only her panties. When he began masturbating, Epstein placed 
Jane Doe #4 on the massage table, pushed her underwear to one side, and stroked her vagina. 
He also fondled her breasts. Jane Doe #4 received another $200. At some point during her 
visits, Epstein asked Jane Doe #4 how old she was, and she told him her true age (17). 
4 
EFTA00191648

Jane Doe #4 recruited Jane Doe #6. On one occasion in the Spring of Jane Doe #6's 
junior year, when Jane Doe #6 was 16 years old, she and Jane Doe #4 went to Epstein's 
house together. Epstein asked Jane Doe #6 what high school she went to and Jane Doe #6 
answered Palm Beach Central High School. Jane Doe #4 took Jane Doe #6 upstairs and told 
her to remove her clothing. Both girls were wearing only their panties when Epstein entered. 
Epstein laid down and both girls began massaging him. Epstein then asked Jane Doe #4 to 
leave. After she left, Epstein began masturbating and grabbing Jane Doe #6, touching her 
all over. When Jane Doe #6 pulled away, Epstein would grab her and pull her closer. 
Epstein both digitally penetrated Jane Doe #6 and placed the vibrator/massager on her 
vagina. Jane Doe #6 was paid $200, but cannot remember who handed the money to her. 
Jane Doe #6 never returned, but Jane Doe #4 went a few more times. Jane Doe #4 
explained that Kellen would always call to set up the appointments. 
Jane Does #4, #5, and #6 are all referenced in the overt acts section of the indictment. 
The only telephone contact initiated by Epstein's group that resulted in sexual conduct was 
between Jane Doe #4 and Kellen, so Jane Doe #4 is the subject of one of the substantive 
enticement counts. Also, because Jane Doe #4 told Epstein her true age, I have added a 
substantive sex trafficking charge related to Jane Doe #4. 
B. 
ad.
)
Ja e Doe ii8 
Jass.pae #8 was recruited by 
in approximately July 2004, when Jane Doe #8 
was 17. 
told Jane Doe #8 that she knew a "filthy rich guy" who would pay girls $200 
to $300 for giving a massage. 
took Jane Doe #8 to Epstein's home in a taxi. Epstein 
took a shower before starting the massage and instructed Jane Doe #8 to remove her shirt. 
Epstein began masturbating and rubbed Jane Doe #8's vagina over her panties before pushing 
the underwear aside to stroke her vagina. Epstein told Jane Doe #8, "this is normal 
nothing's wrong." Epstein paid Jane Doe #8 $200 to $300. During the ride home, 
told Jane Doe #8 that she had been paid and said, "if you bring someone, you'll get $200." 
Kellen called about a week later inviting Jane Doe #8 to return and telling her that 
Epstein would pay if she brought a friend. Kellen called Jane Doe #8 eight or nine times. 
Jane Doe #8 finally told Kellen that she moved out of state to stop her from calling. 
According to Kellen's phone records, Kellen called Jane Doe #8 four times in one day when 
Epstein was in town. 
Jane Doe #8 is referenced in the overt acts section of the indictment and in one of the 
5 
EFTA00191649

• substantive counts of travel in interstate commerce to engage in illicit sexual activity. 
C. 
B. (Jane Doe #11l
Jane Doe #11 is the first fully-identified New York high school girl. She only 
provided one massage, but became a recruiter for Epstein. Jane Doe #11 first went to 
Epstein's home towards the end of her junior year, when she was seventeen years old. After 
that first massage, Epstein told Jane Doe #11 that he would pay her to bring more girls. 
Jane Doe #11 implicates two other Epstein assistants — Lesley Groff and Cecilia 
Steen. We had anticipated that Groff would be a witness, not a target. When the agents went 
to Groff's house to interview her, she went upstairs, claiming she needed to change her 
baby's diaper. While upstairs, she called Epstein, causing Epstein to re-route his flight to 
take Kellen and Marcinkova back to his island. (They were scheduled to fly to New Jersey, 
where the agents had planned to serve Kellen and Marcinkova with target letters.) After this 
meeting with Groff, Epstein's team began negotiating in earnest to end this investigation. 
FBI New York agents are interviewing several girls identified by Jane Doe #11. At 
this time, we do not have Lesley Groff's phone records, so we do not have sufficient 
evidence to charge her. She is referred to by her initials in the indictment, and we will 
hopefully be ready to charge her when we supersede the indictment. 
Jane Doe #11 is referenced in the overt acts but is not part of any substantive counts. 
D. 
M 
A. (Jane Doe #18) and 
H. (Jane Doe #19) 
Jane Doe #18 was recruited by her brother's friend, Tony 
(referred to in 
indictment as "A.F."). Figueroa also was the former boyfriend 
(Jane Doe #1). 
Figueroa recruited several girls to Epstein's home includin 
R. Jane Doe #18 
attended R2 al Palm Beach High School with =and 
recruits. Jane Doe #18 
knew that = 
and the other girls were going to Epstein's house, but they did not know 
about Jane Doe #18. 
Figueroa told Jane Doe #18 that she would receive $200 for providing a massage and 
that she should tell Epstein that she was 18, if he asked. (Epstein never asked.) Figueroa 
drove Jane Doe #18 to Epstein's house. Jane Doe #18 describes a similar pattern of activity 
as that faced by the other victims, with Epstein pushing for more clothes to be removed and 
more sexual activity with each visit. On her second-to-last visit, Epstein walked Jane Doe 
6 
EFTA00191650

#18 over to a couch, forcibly pushed her panties aside, and digitally penetrated her, without 
her consent. Jane Doe #18 is still traumatized by this event. She reports that she went 
through a period of using drugs, but now she is clean and is studying to be a nurse. Jane Doe 
#18 is only about five feet tall and looks barely eighteen now. She is very concerned about 
her family finding out about what happened to her, but she is strongly committed to Epstein's 
prosecution. 
What seems most devastating to Jane Doe #18 is that she returned to Epstein's house 
after the forcible digital penetration and brought her friend, Jane Doe #19. Jane Doe #19 
massaged Epstein's back and legs. When he turned over, Epstein asked Jane Doe #19 to 
remove her shirt. She refused and he became upset and ended the massage. Epstein then 
sent for Jane Doe #18 and reprimanded her for not telling Jane Doe #19 that she would have 
to perform the massage topless. 
When Jane Does #18 and #19 left, they called the Royal Palm Beach Police 
Department, who referred them to the Palm Beach Police. Jane Does #18 and #19 spoke 
with someone there and reported what happened. After much searching, the Palm Beach 
Police Department was able to locate a report of this call. The report contains Epstein's 
name and address and the names of both girls and describes Epstein as paying $200 for a 
massage. The girls complained that Epstein insisted that they take off their tops and pants, 
even though he knew that they were 17. The date of the report is March 5, 2004, less than 
two weeks after Jane Doe #18's eighteenth birthday, and when Jane Doe #19 was seventeen 
years old. [NB: The police report describes a pattern of activity, including dates when Jane 
Doe #18 was seventeen years old.] Neither Jane Doe #18 nor #19 ever returned to Epstein's 
home. 
Although we have not yet obtained Jane Doe #18's telephone records, we were able 
to identify her telephone number, and there are twenty telephone calls that appear on Sarah 
Kellen's phone records. All of those calls were outgoing (meaning Kellen called Jane Doe 
#18.) The telephone calls range in date from August 27, 2003 through March 3, 2004. The 
phone number is the same one that Jane Doe #18 provided to the Palm Beach Police 
Department when she made the report against Epstein. Kellen never again called Jane Doe 
#18 after JD#18 made the report to the Palm Beach Police Department. 
Both Jane Doe #18 and Jane Doe #19 appear in the overt acts portion of the 
Indictment. In addition, a count of use of the telephone to entice Jane Doe #18 to engage in 
prostitution has been added. There was no direct telephone contact between Kellen and Jane 
Doe #19, so a substantive count has not been added related to her. 
7 
EFTA00191651

III. 
OTHER CHANGES TO INDICTMENT 
The overt acts are now organized by victim, or if a group of victims are related, then 
by group, followed by a separate listing of Epstein's travel to Palm Beach. This should make 
the indictment much easier to follow. I also have selected telephone calls that are more 
closely linked to the dates of the sexual activity rather than focusing exclusively on calls near 
flights. The number of overt acts has not significantly decreased for the following reason. 
First, as an initial filing, the included overt acts provide a complete picture of Epstein's 
behavior. The Grand Jury's determination that there is probable cause to believe that all of 
the acts were committed should help persuade the Magistrate Judge and the District Judge 
that Epstein is a danger to the community and that the evidence against Epstein is strong. 
Second, there are cases that suggest that, when a certain number of overt acts are charged in 
a conspiracy count, but the Government seeks to introduce a large number of uncharged overt 
acts, those uncharged acts can serve as a variance from/amendment to the Indictment. One 
of those cases was argued by Gerald Lefcourt — one of Epstein's attorneys. For those 
reasons, I have kept most of the overt acts from the original indictment (excluding those 
related to the Jane Does who have been dropped from the indictment) and have added acts 
related to the new Jane Does. I still plan to supersede the indictment with information about 
additional Jane Does from New York or elsewhere and with potential money laundering 
counts and computer-related counts when those phases of the investigation are completed. 
At the time I supersede, the overt acts can be reduced. 
The counts have been reorganized based upon discussions with Myesha Braden from 
the Child Exploitation Section. She believes that our strongest counts are the child sex 
trafficking violations (18 U.S.C. § 1591). I have moved those counts forward in the 
indictment. 
8 
EFTA00191652

Page 1 of 14 
wesflaw. 
602 F.Supp. 1029 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
C 
U.S. it DiVarco 
D.C. .,1985. 
United States District Court, N.D. Illinois, 
Eastern Division. 
UNITED STATES of America, Plaintiff, 
Joseph DiVARCO, et al., Defendants. 
No. 84 CR 507. 
Feb. 6, 1985. 
After conviction by jury on all counts in 
which each defendant was named in indict-
ment, Government moved for detention of 
each of them pursuant to Bail Reform Act, 
claiming each of them was likely to pose 
danger to safety of other persons or com-
munity if released. Defendants moved for 
release from detention, launching number 
of constitutional attacks on statute. The 
District Court, Shadur, J., held that: (1) 
Bail Reform Act did not violate Eighth 
Amendment's proscription on excessive 
bail; (2) Act did not violate due process on 
ground it was vague or lacked standards; 
(3) Act did not violate equal protection; (4) 
detention pending sentencing did not viol-
ate defendants' right to counsel; and (5) ap-
plication of law to defendants did not con-
stitute ex post facto violation. 
Motions for release on bail denied. 
West Headnotes 
[II Bail 49 E
52 
49 Bail 
49II In Criminal Prosecutions 
49k50 Amount of Bail 
49k52 k. Excessive Bail. Most 
Cited Cases 
Provision of Bail Reform Act which im-
Page 1 
poses upon defendant burden of showing 
by clear and convincing evidence that he is 
not likely to pose danger to safety of other 
persons or community if released on bail 
does not violate Eighth Amendment pro-
hibition 
on 
excessive 
bail. 
U.S.C.A. 
Const.Amend. 8; 18 U.S.C.A. § 3143(a). 
[2] Bail 49 ec.39 
49 Bail 
49II In Criminal Prosecutions 
49k39 k. Nature and Scope of Rem-
edy. Most Cited Cases 
Although statute requiring that presentence 
convicted defendant establish by clear and 
convincing evidence that he is not likely to 
pose danger to safety of other persons or 
community if released under Bail Reform 
Act did not specify procedures to be fol-
lowed, it was not invalid on ground it was 
vague or lacked standards, where require-
ment of judicial officer's finding by clear 
and convincing evidence necessarily con-
noted hearing, and clear implication of stat-
ute was that neighboring provisions dealing 
with hearings for presentence detention 
and specifying factors to be considered in 
such hearings, including safety or danger 
of others and community applied to presen-
tence defendant as well. 18 U.S.C.A. §§ 
3142(b, c, f, g), 3143(a). 
13] Statutes 361 C=.47 
361 Statutes 
361I Enactment, Requisites, and Valid-
ity in General 
361k45 Validity and Sufficiency of 
Provisions 
361k47 k. Certainty and Definite-
ness. Most Cited Cases 
Congress is not required to substitute par-
ticular for generic or to give term more 
C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%76FEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191653

602 F.Supp. 1029 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
precise content by giving examples or by 
establishing laundry list. 
HI Constitutional Law 92 €=)889 
92 Constitutional Law 
92VI Enforcement of Constitutional 
Provisions 
92VI(A) Persons Entitled to Raise 
Constitutional Questions; Standing 
92VI(A)10 Due Process 
92k888 Criminal Law 
92k889 k. In General. Most 
Cited Cases 
(Formerly 92k42.1(3)) 
Defendants challenging provision of Bail 
Reform Act requiring that presentence con-
victed defendant establish by clear and 
convincing evidence that he is not likely to 
pose danger to safety of other persons or 
community if released on bail could not 
challenge constitutionality of statute on 
ground that term "danger' lacked meaning 
as to them, where defendants were tied by 
testimony to gangland-type assassinations 
and with potential for retaliation against 
witnesses. 18 U.S.C.A. §§ 3142(b, c), 
3143(a). 
[5] Bail 49 E=49(4) 
49 Bail 
49II In Criminal Prosecutions 
49k49 Proceedings to Admit to Bail 
49k49(3) Evidence 
49k49(4) 
k. 
Presumptions 
and Burden of Proof. Most Cited Cases 
Bail 49 €=.49(5) 
49 Bail 
49II In Criminal Prosecutions 
49k49 Proceedings to Admit to Bail 
49k49(5) k. Hearing and Determ-
ination. Most Cited Cases 
Court assured both adequate notice of al-
Page 2 of 14 
Page 2 
legations against defendants and ample op-
portunity for meaningful defense to Gov-
ernment's motion for detention of defend-
ants on ground defendants were likely to 
pose danger to safety of other persons or 
community if released, where court im-
posed burden of going forward at hearing 
on Government and accorded each defend-
ant and his counsel as much time as they 
found necessary to deal with Government's 
charges. 18 U.S.C.A. §§ 3142(b, c), 3143(a). 
[6] Bail 49 C=49(3.1) 
49 Bail 
49II In Criminal Prosecutions 
49k49 Proceedings to Admit to Bail 
49k49(3) Evidence 
49k49(3.1) 
k. 
In 
General. 
Most Cited Cases 
(Formerly 49k49(3)) 
Rules of evidence do not limit conduct of 
bail hearings, even those resulting in de-
tention; thus, hearsay may be considered, 
with judge applying his or her experience 
as fact finder to decide extent to which it is 
to be credited or discredited because of in-
sufficient reliability. 
[7] Constitutional Law 92 €=.4653 
92 Constitutional Law 
92XXVII Due Process 
92XXVII(H) Criminal Law 
92XXVII(H)5 Evidence and Wit-
nesses 
92k4653 k. Presumptions, In-
ferences, and Burden of Proof. Most Cited 
Cases 
(Formerly 92k266(7)) 
Burden of proof allocations in criminal 
cases do not necessarily implicate due pro-
cess requirements. U.S.C.A. Const.Amend. 
5. 
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191654

602 F.Supp. 1029 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
181 Constitutional Law 92 41:=3797 
92 Constitutional Law 
92XXVI Equal Protection 
92XXVI(F) Criminal Law 
92k3797 k. Bail. Most Cited Cases 
(Formerly 92k250.2(1)) 
Bail 49 €=,42 
49 Bail 
4911 In Criminal Prosecutions 
49k41 Right to Release on Bail 
49k42 k. In General. Most Cited 
Cases 
(Formerly 92k250.2(1)) 
Where occasion for court's present determ-
ination was not offense leading to convic-
tion but postconviction threat to safety 
posed by defendants, and class defined by 
Congress as all convicted defendants who 
represented such societal threat bore most 
direct imaginable nexus to remedy of de-
tention pending sentencing, Bail Reform 
Act's failure to distinguish between those 
who pled guilty and those convicted after 
trial, between those convicted of misde-
meanors and those convicted of felonies, 
and between those convicted of nonviolent 
and those convicted of violent offenses 
raised 
no 
equal 
protection 
problems. 
U.S.C.A. Const.Amend. 5; 18 U.S.C.A. § 
3143. 
19] Bail 49 E:=039 
49 Bail 
4911 In Criminal Prosecutions 
49k39 k. Nature and Scope of Rem-
edy. Most Cited Cases 
Court may structure conditions of .presen-
tence detention so as to preserve rights of 
defendant to appeal and to present mean-
ingful defense; thus, statute which provides 
for detention of defendant who is con-
Page 3 of 14 
Page 3 
victed but not yet sentenced unless he es-
tablishes by clear and convincing evidence 
he is not likely to pose danger to society or 
others does not implicate defendant's Sixth 
Amendment right to counsel. U.S.C.A. 
Const.Amend. 6; 18 U.S.C.A. §§ 3142(b, 
c), 3143(a). 
[101 Constitutional Law 92 C=2790 
92 Constitutional Law 
92XXIII Ex Post Facto Prohibitions 
92XXIII(A) Constitutional Prohibi-
tions in General 
92k2790 k. Punishment in Gener-
al. Most Cited Cases 
(Formerly 92k203) 
Absent "punishment," there is no ex
st 
facto problem. U.S.C.A. Const. Art. 1, § 
po9, 
cl. 3. 
[111 Constitutional Law 92 C=2810 
92 Constitutional Law 
92XXIII Ex Post Facto Prohibitions 
92XXIII(B) Particular Issues and 
Applications 
92k2809 Criminal Proceedings 
92k2810 k. In General. Most 
Cited Cases 
(Formerly 92k199) 
Bail 4941:=412 
49 Bail 
4911 In Criminal Prosecutions 
49k41 Right to Release on Bail 
49k42 k. In General. Most Cited 
Cases 
(Formerly 92k199) 
Section of Bail Reform Act providing for 
detention of presentence convicted defend-
ant unless defendant shows by clear and 
convincing evidence he is not likely to 
pose danger to society or others if released 
on bail is aimed not at punishing past con-
O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191655

Page 4 of 14 
602 F.Supp. 1029 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
duct but at protecting society generally, 
and its individual members particularly, 
from reasonably predictable future con-
duct; thus, where jury had already found 
beyond reasonable doubt that defendants 
had committed crimes, application of stat-
ute to them did not constitute impermiss-
ible ex post facto law. U.S.C.A. Const. Art. 
1, § 9, cl. 3; 18 U.S.C.A. § 3143. 
*1031 Judith Dobkin, John Scully, Sp. At-
tys., U.S. Dept. of Justice, Chicago, Ill., for 
plaintiff. 
Elliot Samuels, I. 
P. Lynch, Chicago, 
Ill., Joseph M. 
rata, Wheaton, Ill., for 
defendants. 
MEMORANDUM OPINION AND OR-
DER 
SHADUR, District Judge. 
On January 9, 1985 each of Joseph Di-
Varco ("DiVarco") and Ronald Ignoffo 
("Ignoffo") was convicted by a jury on all 
counts in which he was named in the in-
dictment in this case. On January 10 the 
government moved for the detention of 
each of them pursuant to the Bail Reform 
Act of 1984 (the "Act"), 18 U.S.C. § 
3143(a) ("Section 3143(a)"),Fm claiming 
each of them (though not any of their four 
convicted codefendants) was likely to pose 
a danger to the safety of other persons or 
the community if released pursuant to Sec-
tions 3142(b) or (c). 
FN1. All other citations to Title 18 
(as amended by the Act) will also 
simply take the form "Section-." 
Citations to the Act's internal num-
bering will take the form "Act §-." 
*1032 This Court immediately conducted a 
detention hearing (the "Hearing") on Janu-
ary 10 and 11. At the conclusion of the 
Hearing as to Ignoffo, this Court found he 
Page 4 
had not shown by clear and convincing 
evidence that he was not likely to pose 
such a danger. Accordingly Ignoffo was 
ordered detained in accordance with Sec-
tion 3143(a) P4 DiVarco's hearing was 
not concluded because his doctors recom-
mended he be hospitalized.no However, 
given 
the 
testimony 
to 
this 
point 
(implicating DiVarco not only in the gang-
land-type assassination tied to Ignoffo, see 
Ex. 1 Finding 1, but also to the botched as-
sassination of Ken Eto, a witness in the tri-
al of this case), this Court ordered DiVarco 
committed to the custody of the Attorney 
General for confinement at Bethany Meth-
odist Hospital pending imposition of sen-
tence (subject, of course, to a possibly dif-
ferent resolution if the Hearing were com-
pleted before that time).na 
FN2. Exhibit 1 to this memorandum 
opinion and order is this Court's or-
der of detention as to Ignoffo. 
FN3. At that time DiVarco's doctors 
considered him an imminent pneu-
monia risk, in addition to his having 
an irregular heartbeat pattern and 
other problems. After his hospitaliz-
ation they recommended installation 
of a pacemaker, which has since 
been done. DiVarco is now recuper-
ating 
from 
that 
operation 
and 
should be capable of discharge from 
the hospital shortly, though a later 
hearing on that subject has dis-
closed further complications in his 
physical condition. 
FN4. Exhibit 2 to this memorandum 
opinion and order is this Court's or-
der of detention as to DiVarco. 
Both DiVarco and Ignoffo have now 
moved for release from detention, launch-
ing a number of constitutional attacks on 
O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191656

602 F.Supp. 1029 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
Section 3143(a). For the reasons stated in 
this memorandum opinion and order, their 
motions are denied. 
Changed Standards Under the Act 
Two of this Court's colleagues have re-
cently dealt with the constitutionality of 
other bail provisiox of the Act: Judge Hart 
in United States 
Hazzard, 598 F.Supp. 
1442 (N.D.Ill.19 ) (pretrial detentio 
and Judge Getzendanner in United States
Cirrincione, 600 F.Supp. 1436, (ND.I
1985) (detention after sentencing and 
pending appeal, based on the likelihood of 
reversal on appeal). Though the constitu-
tional considerations in those situations are 
obviously related to the considerations ap-
plicable to the present question, the distinc-
tions among the several situations make 
neither of the earlier analyses controlling 
here. 
Here we deal with already-convicted but 
not-yet-sentenced defendants, as to each of 
whom the decision of detention or release 
is based on whether he "is not likely to ... 
pose a danger to the safety of any other 
person or the community if released" (Sec-
tion 3143(a)). Just such a likelihood of 
danger was an established basis for deny-
ing bail under former law, 18 U.S.C. § 
3148 (repealed by Act § 203(a)): 
A person ... who has been convicted of an 
offense and is either awaiting sentence or 
sentence review under section 3576 of this 
title or has filed an appeal or a petition for 
a writ of certiorari, shall be treated in ac-
cordance with the provisions of section 
3146 [establishing conditions of release] 
unless the court or judge has reason to be-
lieve that no one or more conditions of re-
lease will reasonably assure that the person 
will not flee or pose a danger to any other 
Page 5 of 14 
Page 5 
person or to the community. If such a risk 
of flight or danger is believed to exist ... 
the person may be ordered detained. 
Pre-Act law also imposed the burden of es-
tablishing the absence of such danger on 
the convicted defendant-at least one who 
has already been sentenced. Although early 
case law under 18 U.S.C. § 3148 had 
treated its language as continuing to create 
the historial presumption rinstdeten-
tion *1033 (United States 
Provenzano, 
605 F.2d 85, 94 (3d Cir.1 9)), in 1972 
Fed.R.App. ("Rule 
9(c) was adopted ex-
pressly (1972 Advisory Committee Notes 
to that Rule): 
to allocate to the defendant the burden of 
establishing that he will not flee and that he 
poses no danger to any other person or to 
the community. The burden is placed upon 
the defendant in the view that the fact of 
his conviction justifies retention in custody 
in situations where doubt exists as to 
whether he can be safely released pending 
disposition of his appeal. 
See discussion in Provenzano, 605 F.2d at 
93-95. 
Thus the allocation of proof as to the dan-
gerous post -sentence defendant is clear. 
But this Court has not located any case, 
either under prior law or under the Act, 
dealing with the burden-of-proof question 
in the post-conviction pre -sentence situ-
ation such as DiVarco's or Ignoffo's. It 
would surely seem, however, that Congress 
might reasonably have viewed the single 
fact of conviction (as opposed to the pre-
cise timing of a detention decision-wheth-
er pre-sentence or post-sentence) as de-
terminative, so as to equate the burden of 
proof in any post-conviction situation to 
that defined in Rule 9(c) (see the later dis-
cussion of this subject). In any event, the 
C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
hups://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191657

Page 6 of 14 
602 F.Supp. 1029 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
Act has now changed the burden on the 
convicted defendant (both pre-sentence and 
post-sentence) to one of "clear and convin-
cing evidence." FM
FNS. Thus the shift from old 18 
U.S.C. § 3148 and Rule 9(c) to Sec-
tion 3143(a) involves two changes: 
1. from "the judge has reason to 
believe that no ... conditions of re-
lease will reasonably assure that 
the person will not ... pose a 
danger...." to "the judicial officer 
finds ... that the person is not 
likely to ... pose a danger...."; and 
2. from "the burden of establish-
ing ... rests with the defendant" to 
"the judicial officer finds by clear 
and convincing evidence...." 
It is always difficult to convert the 
semantics 
of 
such 
differently 
stated standards into a quantified 
comparison. Here the "reason to 
believe" test in the first pairing 
might 
arguably be viewed as 
harder for a defendant to over-
come than its "finds not likely" 
counterpart. 
Conversely 
"clear 
and convincing" is plainly a more 
difficult burden for the defendant 
than a mere preponderance. Thus 
(with factors that might be per-
ceived as pointing in different dir-
ections) the overall effect of the 
changes is not as obvious as it 
might seem at first blush. For pur-
poses of this opinion, however, it 
will be assumed a defendant is 
worse off under the Act than un-
der the old law. 
Constitutional Considerations "a 
Page 6 
FN6. All the detention provisions 
of the Act have been drawn from 
the corresponding provisions of the 
District 
of 
Columbia 
Code 
(Sections 
23-1321 
to 
23-1327), 
where they have been in effect since 
enactment 
of 
the 
District 
of 
Columbia Court Reform and Crim-
inal Procedure Act of 1970. Section 
3143(a) 
is 
a 
counter-pan 
of 
D.C.CT § 23-1325(b). In United 
States 
Edwards, 430 A.2d 1321 
C.1 1) (en bane) the District of 
Columbia Court of Appeals dealt 
with the constitutionality of various 
of those provisions in an extended 
opinion (with some dissents on dif-
ferent issues). 
1. Eighth Amendment 
At the outset it should be made clear the 
"right to bail" here-at least in terms of a lit-
eral constitutional right-is plainly a mis-
nomer. What the Eighth Amendment says 
on the subject is simply this: 
Excessiv bail shall not be required.... In 
Carlson 
Landon, 342 U.S. 524, 72 S.Ct. 
525, 96 
.Ed. 547 (1952) the Supreme 
Court rejected (albeit in dictum) the notion 
that because excessive bail cannot be set, 
the outright denial of bail must a fortiori be 
foreclosed. Instead the Eighth Amendment 
was there taken to mean that if an individu-
al is found entitled to bail at all, the right 
created by that determination cannot be 
subverted by an unreasonably high bail set-
ting (id. at 545, 72 S.Ct. at 536): 
The [Eighth Amendment's] bail clause was 
lifted with slight changes from the English 
Bill of Rights Act. In England *1034 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 
O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.cotn/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191658

602 F.Supp. 1029 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
those cases where it is proper to grant bail. 
When this clause was earned over into our 
Bill of Rights, nothing was said that indic-
ated 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. 
There is room for debate on that score in 
L
the pre-conviction co ext, fueled in part 
by a dictum in Stack 
Boyle, 342 U.S. 1, 
4, 72 S.Ct. 1, 3, 96 L. . 1 (1951) (decided 
the same term as Carlson ) (emphasis in 
original): 
From the passage of the Judiciary Act of 
1789, 1 Stat. 73, 91, to the present Federal 
Rules 
of 
Criminal 
Procedure, 
Rule 
46(a)(1), federal law has unequivocally 
provided that a person arrested for a non-
capital offense shall be admitted to bail. 
This traditional right to freedom before 
conviction permits the unhampered prepar-
ation of a defense, and serves to prevent 
i m
the infliction of puni 
ent prior to con-
viction. See Hudson 
Parker, 156 U.S. 
277, 285 [15 S.Ct. 45 , 453, 39 L.Ed. 424] 
(1895). Unless this right to bail before trial 
is preserved, the presumption of inno-
cence, secured only after centuries of 
struggle, would lose its meaning. 
1
For an extended discussion of e issues in 
this area, see United States 
Edwards, 
430 A.2d 1321, 1325-31 (D. .1981) (en 
banc). 
But even the Stack dictum addresses the 
pre -conviction, not post -conviction, de-
fendant. As for the latter category of of-
fender Justice Douglas, scarcely a foe of 
civil liberties, spoke to the issue ' his ca-
pacity as Circuit Justice in Carboi United 
States, 82 S.Ct. 662, 666, 7 L. 
.2d 769 
(1962): 
Page 7 of 14 
Page 7 
If, for example, the safety of the com-
munity would be jeopardized, it would be 
irresponsible judicial action to grant bail. 
Accord, Harris k United States, 404 U.S. 
1232, 1235-36, 
2 S.Ct. 10, 13-14, 30 
L.Ed.2d 25 (1971) (Dol las, J., Circuit 
Justice); and see Russell 
United States, 
402 F.2d 185, 187 (D.C.Cir. 968): 
Appellants will remain in custody not be-
cause they lack the means to make bail, but 
for the reason that their release would 
present danger to the community. 
But see Sellers' United States, 89 S.Ct. 
36, 38, 21 L.Ed d d 64 (1968) (Black, J., 
Circuit Justice) (questioning whether a de-
fendant's dangerousness can ever justify 
denial of bail). 
[1] This Court therefore rejects, as to con-
victed defendants DiVarco and Ignoffo, the 
unconstitutionality of Section 3143(a) on 
Eighth Amendment grounds.m If de-
fendants are to find relief, it must be else-
where in the Constitution. 
FN7. There are cases that express 
dir 
some 
bt on this score; see, e.g., 
Hunt 
Roth, 648 F.2d 1148, 
1158-6 (8th Cir.1981). But they do 
so on the theory that a wholly arbit-
rary denial of bail is the functional 
equivalent of "excessive bail," thus 
violating the Eighth Amendment. 
Even on that view, Congress' de-
cision that a defendant's danger to 
society should foreclose his release 
can hardly be viewed as establish-
ing a wholly arbitrary classification. 
Thus the conclusion reached in the 
text would not be altered by a dif-
ferent perception of the Eighth 
Amendment. 
2. Due Process Clause 
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191659

Page 8 of 14 
602 F.Supp. 1029 
• 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
Both DiVarco and Ignoffo advance a pot-
pourri of challenges to the procedure under 
the Act. None is persuasive, and none calls 
for more than brief discussion." 
FN8. True enough, just last year tj 
Supreme Court said in Scholl 
Marlin, 467 U.S. 253, 104 S.
2403, 2410, 81 L.Ed.2d 207 (1984): 
In Bell i Wolfish, 441 U.S. [520], 
at 534 
15, 99 S.Ct. [1861], at 
1871 n. 15 [60 L.Ed.2d 447 
(1979) ], we left open the question 
whether any governmental object-
ive other than ensuring a detain-
ee's presence at trial may constitu-
tionally justify pretrial detention. 
But Scholl itself upheld in due 
process terms (at least as to juven-
iles) a system of pretrial deten-
tion predicated on "the combined 
interest in protecting both the 
community and the juvenile him-
self from the consequences of fu-
ture criminal conduct...." When 
the detained person has already 
been tried and found guilty of an-
other crime (as have DiVarco and 
Ignoffo), the powerful considera-
tion of the presumption of inno-
cence (which undergirds all our 
concerns about pretrial detention, 
viewed as punishment, see Stack, 
342 U.S. at 4, 72 S.Ct. at 3) loses 
its force. It would be a mistake to 
carry over to the present situation, 
in undiluted form, the troubled ju-
dicial soul-searching about pretri-
al detention-a soul-searching that 
has expressed itself in a continu-
ing 
due 
process 
dialogue 
(contrast, for example, the major-
ity and dissenting opinions in both 
Scholl and Bell ). 
Page 8 
*1035 [2][3][4][5][6][7] Though they call 
on such pejorative rubrics as vagueness 
and lack of standards, DiVarco and Ignoffo 
attack Section 3143 in both procedural and 
substantive due process terms. It is true the 
statute does not specifically prescribe the 
procedures to be followed. But its require-
ment of a judicial officer's "find[ing] by 
clear and convincing evidence" necessarily 
connotes a hearing, and the clear implica-
tion of the statute is that the neighboring 
provisions of Sections 3142(f) (dealing 
i
with hearings for 
resentence detention) 
and 3142(g) (speci ing the factors to be 
considered in suc 
hearings, including 
safety or danger to other persons and the 
community) apply to Section 3143(a) as 
well." This Court in fact conducted just 
such a hearing. In that light the DiVarco-Ig-
noffo arguments evanesce: 
FN9. Among other things, Section 
3143(a) says a finding of no danger 
results in a release order under Sec-
tion 3142(b) or (c). Section 3142(f) 
provides for the "detention hear-
ing" to see which if any conditions 
under 
one 
of 
those 
very 
sections-Section 3142(c)-should ap-
ply. Section 3142(g) speaks of the 
factors to be considered at such a 
hearing. That statutory structure of 
course creates a common-sense link 
between the Section 3143(a) re-
quirement of a finding, on the one 
hand, and the Section 3142(f) hear-
ing procedures and the Section 
3142(g) factors, on the other. 
1. Any claim that it is not clear to whom 
the statute applies is absurd: It is poten-
tially applicable to any convicted defend-
ant, and it is actually applied against any 
such person about whom the government 
has information that he or she poses a po-
C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
hups://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191660

602 F.Supp. 1029 
• 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
tential danger to other persons or the com-
munity. That triggers the need for a judicial 
determination of the issue, and hence a 
hearing. 
2. By its very nature, such "danger" can 
take a number of forms. Nothing requires 
Congress to substitute the particular for the 
generic-to give the term more precise con-
tent by giving examples or by establishing 
a laundry list. Certainly DiVarco and Ig-
noffo, tied by testimony to gangland-type 
assassinations (and with their potential for 
retaliation against witnesses here), cannot 
claim the concept of danger to others or the 
community is devoid of content in their 
cases. That would follow a fortiori from 
such cases as Provenzano, 605 F.2d at 
95-96. And as to what constitutes a 
"sufficient showing" of the likelihood of 
such danger, that is no different from any 
other factual determination courts are regu-
larly called upon to make. 
3. By imposing the burden of going for-
ward at the Hearing on the government and 
by according to each defendant and his 
counsel as much time as they found neces-
sary to deal with the government's charges, 
this Court assured both adequate notice of 
the allegations against the defendants and 
ample opportunity for a meaningful de-
fense. Edwards, 430 A.2d at 1339-41. 
4. Even in full-blown criminal trials, the 
Sixth Amendments Confrontation Clause 
poses the only constitutional objection to 
hearsay evidence. And it has always been 
true of bail hearings, including those res-
ulting in detention, that the rules of evid-
ence do not limit the conduct *1036 of the 
hearing. Hearsay may be considered, with 
the judge applying his or her experience as 
a factfmder to decide the extent to which it 
is to be credited or discredited because of 
insufficient reliability. In fact the catchall 
Page 9 of 14 
Page 9 
provision of Fed.R.Evid. 803(24) and 
804(bX5) (which some thoughtful academ-
icians and courts have suggested ought to 
supplant entirely the particularized excep-
tions to the hearsay rule) permit essentially 
that result even in the more formal environ-
ment of a trial. On this issue generally, see 
Edwards, 430 A.2d at 1337-38. 
5. Burden of proof allocations do not ne-
cessarily implicate due process require-
ments. This opinion has already pointed 
out that prior law imposed on the defendant 
the burden of proof (at least in the post-
conviction, post-sentencing situation) of 
negating his or her likely danger to other 
persons or the community where that was 
placed in issue. And so long as the issue is 
one of likelihood of danger, it appears ra-
tional for Congress to have equated the 
convicted felon before sentencing with the 
same convicted felon after sentencing for 
the purpose of protecting society against 
the dangers he or she presents. In turn, that 
equal need for protection carries with it the 
rationality of the congressional decision 
that the burden of proof in the two situ-
ations should be exactly the same. Once 
that determination is made, the use of a 
"clear and convincing" rather than a pre-
ponderance test does not appear to cross 
the borderline into a due process no-man's 
land.Fmo 
FN10. Candor compels the disclos-
ure that this Court has found no 
case law (nor have the parties cited 
any) on this subject. 
3. Equal Protection Clause 
Ipoffo suggests Section 3143's failure to 
distinguish between those who plead guilty 
and those convicted after trial, between 
those convicted of misdemeanors and those 
O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191661

Page 10 of 14 
• 
602 F.Supp. 1029 
' 602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
convicted of felonies, and between those 
convicted of nonviolent and those con-
victed of violent offenses raises equal pro-
tection problems. DiVarco puts related is-
sues in a different way: Section 3143's pre-
sumption against all convicted defendants-
regardless of their offenses or back-
grounds-bears no rational relationship to 
legitimate governmental interests of pro-
tecting the community (including other 
persons). 
[8] Of course the distinctions between of-
fenders made by Ignoffo cut against rather 
than for him, except the comparison based 
on the nonviolent nature of the offenses of 
which he has been convicted. That fact-that 
he is on the wrong side of two of the three 
comparisons-creates standing questions as 
to his ability to raise such other claims. But 
even apart from that, what both Ignoffo 
and DiVarco gloss over is that the occasion 
for this Courts present determination is not 
the offense leading to the conviction but 
the post-conviction threat to safety posed 
by the defendant.iNii That is the class 
Congress has defined-all convicted defend-
ants who represent such a societal threat-
and that class bears the most direct imagin-
able nexus to the remedy: detention 
pending sentencing. There can be no quar-
rel with the rationality of that classification 
for Equal Protection Clause purposes."4,2
FN11. This distinction is touched 
on more fully in the ex post facto 
discussion later in this opinion. 
FN12. That rational distinction also 
demolishes DiVarco's suggestion of 
discriminatory 
enforcement 
based 
on the government's having sought 
detention of DiVarco and Ignoffo 
but not of their four codefendants 
(as to whom the government said it 
had 
no 
information 
indicating 
Page 10 
danger to other persons or to the 
community). 
4. Effective Assistance of Counsel 
[9] DiVarco says detention pending sen-
tencing effectively negates his right to ap-
peal, and both DiVarco and Ignoffo assert 
*1037 Section 3143's alleged procedural 
flaws preclude any meaningful defense. 
Both those arguments are essentially Sixth 
Amendment right-to-counsel claims, and 
simply to state them is to disclose their 
total lack of merit. It is clearly possible for 
a court to structure the conditions of 
presentence detention so as to preserve 
those rights to a defendant. 
5. Ex Post Facto Clause 
Up to this point DiVarco and Ignoffo have 
struck out on all the grounds they assert. 
That leaves for consideration only the ex 
post facto question-a question that (given 
Judge Getzendanner's opinion invalidating 
a related provision of the Act on that score) 
bears careful scrutiny. 
Because this Court is not called upon to de-
cide the same issues as Judge Getzendan-
ner or Judge Hart, and because orderly jur-
isprudence dictates the non-decision of 
constitutional questions until they must be 
resolved in the crucible, f a live contro-
versy (see Ashwander 
TVA, 297 U.S. 
288, 346-47, 56 S.Ct. 466, 482-83, 80 
L.Ed. 688 (1936) (Brandeis, J., concur-
ring)), nothing in this opinion should be 
construed as either subscribing to or dis-
avowing either Cirrincione or Hazzard. 
But as both the extended analysis in Cirrin-
cione and the shorter treatment in Hazzard 
reflect, the key to ex post facto vulnerabil-
ity vel non in this case is whether, in the 
words of the most recent Supreme Court 
O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191662

Page 11 of 14 
602 F.Supp. 1029 
• 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
pronouncement on the clause, Weaver 
Graham, 450 U.S. 24, 30, 101 S.Ct. 96 , 
965, 67 L.Ed.2d 17 (1981), a defendants 
punishment has been increased by the new 
law: 
The presence or absence of an affirmative, 
enforceable right is not relevant, however, 
to the ex post facto prohibition, which for-
bids the imposition of punishment more 
severe than the punishment assigned by 
law when the act to be punished occurred. 
Critical to relief under the Ex Post Facto 
Clause is not an individual's right to less 
punishment, but the lack of fair notice and 
governmental restraint when the legislature 
increases punishment beyond what was 
prescribed when the crime was consum-
mated.FNI3
FN13. Other facets of Ex Post Facto 
Clause coverage, such as its prohib-
ition of (1) retrospective changes in 
conduct giving rise to criminal pen-
alties and (2) the elimination of de-
fenses available when the crime was 
committed, are plainly not in issue 
here. 
It is true Weaver, id. at 29, 101 S.Ct. at 964 
also speaks in terms of the challenged law 
"disadvantag[ing] the offender affected by 
it." But that characterization alone is over-
simplistic, for the Supreme Court itself has 
consistently 
taught 
not 
every 
"disadvantage" is vulnerable under the 
Clause, and the core inquiry remains the 
/
retro 
ive increase in punishment. As De-
Veau 
Braisted, 363 U.S. 144, 160, 80 
S.Ct. 
46, 1155, 4 L.Ed.2d 1109 (1960) 
put it: 
The mark of an ex post facto law is the im-
position of what can fairly be designated 
punishment for past acts. The question in 
Page 11 
each case where unpleasant consequences 
are brought to bear upon an individual for 
prior conduct, is whether the legislative 
aim was to punish that individual for past 
activity, or whether the restriction of the 
individual comes about as a relevant incid-
ent to a regulation of a present situation.... 
Just last Term the Supreme Court held pre-
trial detention to protect society from the 
potential consequences of predictable cri 
final acts was not punishment. Schalll 
Martin, 104 S.Ct. at 2412-13 (1984). i• 
*1038 Though that decision was rendered 
in the context of juveniles (with their spe-
cial right and disabilities), the same pun-
ishment 
non-punishment analysis was 
announc 
as to adult p r
 al detainees 
five years earlier in Bell 
Wolfish, 441 
U.S. 520, 535, 537, 538, X19 S.Ct. 1861, 
1871, 1873, 1874, 60 L.Ed.2d 447 (1979) 
(citations omitted): 
FN14. Schein and a number of the 
other cases discussed in the text dis-
cuss the concept of "punishment" 
for due process (rather than ex post 
facto) 
purposes. 
Because 
there 
seems 
no 
logical 
reason 
the 
"punishment" concept should be 
given any different content in con-
struing the two constitutional provi-
sions, this Court has felt free to 
draw on the due process cases in 
this Ex Post Facto Clause discus-
sion. 
In evaluating the constitutionality of condi-
tions or restrictions of pretrial detention 
that implicate only the protection against 
deprivation of liberty without due process 
oilaw, we think that the proper inquiry is 
whether those conditions amount to pun-
ishment of the detainee. For under the Due 
Process Clause, a detainee may not be pun-
ished prior to an adjudication of guilt in ac-
2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%71)FEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191663

Page 12 of 14 
602 F.Supp. 1029 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
cordance with due process of law. 
Not every disability imposed during pretri-
al detention amounts to "punishment" in 
the constitutional sense, however. Once the 
Government has exercised its conceded au-
thority to detain a person pending trial, it 
obviously is entitled to employ devices that 
are calculated to effectuate this detention. 
Traditionally, this has meant confinement 
in a facility which, no matter how modem 
or how antiquated, results in restricting the 
movement of a detainee in a manner in 
which he would not be restricted if he 
simply were free to walk the streets 
pending trial. Whether it be called a jail, a 
prison, or a custodial center, the purpose of 
the facility is to detain. Loss of freedom of 
choice and privacy are inherent incidents 
of confinement in such a facility. And the 
fact that such detention interferes with the 
detainee's understandable desire to live as 
comfortably as possible and with as little 
restraint as possible during confinement 
does not convert the conditions or restric-
tions of detention into "punishment." 
This Court has recognized a distinction 
between punitive measures that may not 
constitutionally be imposed prior to a de-
termination of guilt and regulatory re-
straints that may. 
A court must decide whether the disability 
is imposed for the purpose of punishment 
or whether it is but an incident of some 
other legitimate governmental purpose.... 
Absent a showing of an expressed intent to 
punish on the part of detention facility of-
ficials, that determination generally will 
turn 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 al-
Page 12 
temative purpose assigned [to it]." 
What is at work under Section 3143 is not 
punishment for past conduct but the pro-
tection of society generally, and its indi-
vidual members particularly, from reason-
ably predictable future conduct. Scholl, 104 
S.Ct. at 2417-18 (citations omitted) said: 
Our cases indicate, however, that from a 
legal point of view there is nothing inher-
ently unattainable about a prediction of fu-
ture criminal conduct. Such a judgment 
forms an important element in many de-
cisions, and we have specifically rejected 
the contention, based on the same sort of 
sociological data relied upon by appellees 
and the district court, "that it is impossible 
to predict future behavior *1039 and that 
the question is so vague as to be meaning-
less.
That calls into play the concept our Court 
of Appeals applied to the Ex Post Facto 
r
Clause (albeit in a different con 
t from 
the present one) in United States 
Sutton, 
521 F.2d 1385, 1390- 
(7th 
ir.1975) 
(quoting United States 
Karnes, 437 F.2d 
284, 289-90 (9th Cir. , cert. denied,402 
U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 
(1971)): 
It is well established "that where Congress 
has rationally concluded that persons who 
have demonstrated a tendency in the past to 
engage in conduct that Congress has the 
power to proscribe, Congress may restrict 
such future activities without violating the 
Ex Post Facto prohibition." 
[10][11] Again the result here is foreor-
dained by the like conclusions as to pretrial 
detention. In the pretrial situation the mere 
probable cause to believe commission of a 
crime, coupled with a perceived threat of 
the defendant to the safety of others, has 
rendered the detention order something 
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191664

Page 13 of 14 
• 602 F.Supp. 1029 
602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
other than "punishment." Absent punish-
ment there is no ex post facto problem. 
Here, by comparison, a Jury has already 
found beyond a reasonable doubt that Di-
Varco and Ignoffo have committed crimes. 
Surely society cannot be less entitled to 
protect itself and its members against what 
this Court has found the likelihood of real 
dangers-dangers that would be posed by 
the continued enlargement of convicted de-
fendants 
Ignoffo 
and 
DiVarco 
MIS
pending their sentencing. 
FN15. This does not of course im-
ply an ultimate finding as to Di-
Varco. Because the statute places 
the burden on him, and because the 
evidence during the Hearing to this 
point demonstrates a real probabil-
ity of his posing a danger to the 
safety of others, his release pending 
completion of the Hearing would be 
improper. 
Conclusion 
Section 3143 is not vulnerable to constitu-
tional onslaught, either on its face or as ap-
plied to DiVarco and Ignoffo.m, Both 
their motions for release on bail pending 
sentencing are denied. 
FN16. After this opinion was com-
pleted (and indeed signed and ready 
for issuance), this Court learned of 
the very recent decisions by three 
Courts of Appeal reaching a result 
opposite to that of Judge Get-
zendanner's Cirrincione opinion in 
the post-appeal situation covered 
3143(b). United States)! 
n e States 
and other 
753 F.
 
Powell 
19, (3d Cir. 198 
consolidated c es (8th Cir.) (order 
issued; opinion to follow); United 
States' Affleck, No. 84-2630 (10th 
Page 13 
Cir.) (same). In addition, on January 
26 our own Court of Appeals 
entered 
an 
unpublished 
order 
(non-citeable and non-precedential 
under Circuit Rule 35) affirming 
Judge Kanne's decision rejecting 
post facto attack in United States 
Molte, 
HCR 83-36-33 
Jan. 9, 1985). In accordance with 
the Ashwander principles referred 
to earlier in the text, this Court of 
course continues to express no 
opinion on the substantive issue 
posed 
by 
those 
cases. 
It 
has 
however obtained a—. of the one 
available opinion- 
-to determ-
ine how if at all thiMnion may be 
useful here. As to that: 
1. Miller, at 21 gives very short 
shrift to the ex post facto issue, 
simply declaring the "availability 
vel non of bail pending appeal, al-
beit extremely important to the in-
dividual involved, is a procedural 
issue rather than a type of punish-
ment to which the Ex Post Facto 
Clauses apply." 
2. None of the other constitutional 
issues raised by DiVarcodig-
noffo here was discussed in 
Suffice it to say that (not surpris-
ingly, given the CIO 
Appeals' 
ruling) nothing in 
points to 
a different result in 
is case. Nor 
does it appear any more likely that 
any of the other cases cited in this 
footnote would do so. 
Exhibit 1 
*1040 Exhibit 2 
(1) 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
hups://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191665

Page 14 of 14 
• 602 F.Supp. 1029 
' 602 F.Supp. 1029 
(Cite as: 602 F.Supp. 1029) 
UNITED STATES OF AMERICA, 
Plaintiff, 
1 
JOSEPH DiVARCO, et al., Defendants. 
NO. 84 CR 507 
DETENTION ORDER 
On January 9, 1985 following a jury trial, 
Joseph DiVarco ("DiVarco') was con-
victed on all counts in the indictment in 
which he was named in this case. On Janu-
ary 10 the government moved for Di-
Varco's detention pursuant to 18 U.S.C. § 
3143(a). This Court immediately com-
menced a detention hearing (see 18 U.S.C. 
§ [3142] (1)), found that the government 
had presented credible evidence that estab-
lished prima facie (though this Court has 
not at this time definitively found) that Di-
Varco was likely to pose a danger to the 
safety of other persons or the community if 
released pursuant to 18 U.S.C. §§ 3142(b) 
or (c) and that DiVarco had not yet estab-
lished by clear and convincing evidence 
that he was not likely to pose such danger, 
and therefore ordered DiVarco detained 
pending completion of the hearing. Such 
completion of the hearing was not feasible 
at that time, in part because DiVarco's 
counsel advised that DiVarco's doctors had 
directed his hospitalization to avoid the 
possibility of his contracting pneumonia. 
In accordance with 18 U.S.C. § 3143(a) 
this Court hereby orders that DiVarco be 
committed to the custody of the Attorney 
General for confinement at Bethany Meth-
odist Hospital pending imposition of sen-
tence, upon the following conditions: 
Page 14 
1. DiVarco shall be allowed monitored vis-
its from his immediate family (his wife, 
their children and their children's spouses). 
All such visits are to be prearranged 
through the United States Marshal's Ser-
vice. 
2. DiVarco's attorneys (ium Lynch, 
Joseph Laraia and Jacqueli 
er) and 
his doctors shall have unlimited, unmon-
itored access to him. 
3. United States Probation Officer Rhoda 
Michaels shall have unmonitored access to 
DiVarco by prearranged appointment. 
4. DiVarco shall be provided telephone ac-
cess to his immediate family (see Para-
graph 1) if such access can be secured 
ough the United States Marshal's Ser-
vice. Such access shall not include a direct 
dial telephone. 
5. No access shall be provided the United 
States Marshal's Service to DiVarco's med-
ical records, nor shall any Marshal discuss 
DiVarco's medical condition with hospital 
personnel. 
1s/ Milton I. Shadur 
Milton I. Shadur 
United States District Judge 
Date: January 11, 1985 
D.C. .,1985. 
U.S. . DiVarco 
602 .Supp. 1029 
END OF DOCUMENT 
2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 
EFTA00191666