United States of America, Ex Rel., Alvaro Garcia v. James F. O'grady, Sheriff of Cook County

city’s posi- shifting of the This northward. city did not intend shows that the re- it would be time

contend the north half and

sponsible for the north and Moffitt new street

intersection of the south inter- segment and the

for the south hand, has Moffitt, other on the section. agreement to understood the

consistently approximately

require pay him to for has done. which he

feet of street understandably be city well the street and total cost of

unhappy at the 10 and 54 and with Routes

the intersections pay agreement that Moffitt would constructing approxi- full cost of adjoining street his

mately 520 feet of city pay for the would

property while street.” It’s ob-

“remaining portion of the expen- more project became

vious that anticipated with the originally sive than lane, etc., turning of a third

inclusion “remaining portion” became city’s Hindsight, expected. greater than

much

however, attempting to re- is no basis has turned out agreement which

write an party. to one unfavorable sum, Mof- I find the contract between ambiguity. Be- city and the free

fitt his already performed

cause Moffitt has contract, I af-

obligations under the would ruling. court’s

firm the district rel., America, ex

UNITED STATES GARCIA, Petitioner-Appellee,

Alvaro O’GRADY, F. Sheriff Cook

James

County, Respondent-Appellant.

No. 86-2559. Appeals, States Court of

United

Seventh Circuit.

Argued 1986. Nov. Feb.

Decided 20, 1987.

As Amended Feb. Dimon, Atty., Asst. State’s Chica-

Karen 111., petitioner-appellee. go, 111., Mogul, Chicago, respon- County, for of Cook Edward Court Illinois set bond at dent-appellant. 3, 1985, million.1 October $12 On a second hearing bond was held to consider Garcia’s POSNER, COFFEY, Before and for in motion a reduction bond. At both EASTERBROOK, Judges. Circuit hearings testimony was offered that: Gar- cia, now a naturalized United States citizen COFFEY, Judge. Circuit originally immigrated Colombia, O'Grady, Respondent-appellant James F. America, Miami, South lived and worked County, Illinois, appeals Sheriff Cook Florida, family some members of his still grant the district court’s of a writ habe- Colombia, resided and not only Garcia Garcia, petitioner-ap- to as Alvaro frequently travelled to but Colombia was (1986). pellee, reverse. building also a house there. I. September At the hearing bond represented by at which Garcia was coun- 24, 1985, September petitioner On Alvaro sel, Stanley Officer A. Turner Chica- Garcia, along Noriega with and Wilfredo go Department Police Fleites, testified that Garcia Miguel charged was and arrested involved in multimillion dollar substance, delivery with a controlled 111. that conspiracy stood to make over 56V2, Rev.Stat. Ch. and calculated § million Chicago.2 with him alone in $14 drug conspiracy, criminal Ch. Ill.Rev.Stat. 56V2, 1405(b). to hearing agreed At a held on Turner stated that Garcia bond had § kilograms sell him two cocaine September hearing after some pages testimony, of transcribed Circuit and that the two them 2. The relevant Fleites throughout questing cluded: (Emphasis Garcia week, frequent trips A. Columbia, for the As to Garcia and Flutes caine and he wanted to Q. deliver seven kilos Q. have heard lack of ties to with the officer tion)]: real peatedly transactions are limited stated me that there would be no doing Friday, that was day prior A. Mr. Flutes tion because he area? cover an additional transaction sons. [sic] at the [OFFICER probability Do prosecutor, [MS. about his ^[*] to six or seven They a bail bond of you it doesn't make What did highest added). stated to the officer their September committed. WIRTH he mistakenly testimony [sic] know whether Mr. Flutes are ^[*] testimony September had sold five' ability [sic] TURNER Mr. principal Ms. bond had to they Given the fact order you (Counsel a week ^[*] keys community although you stated me that the Sun- Wirth, to Columbia about to do for the have referred to hear In their demonstrated complete to go solely $12 per ]: ^[*] [sic], actors in this to fulfill Officer hearing): stated business? trips difference. indicated kilograms from Mr. week, million Thursday, every not the cocaine New York and hearing we are following ^[*] there. that both the Prosecu- conversation to and from this transac- Flutes [sic] [sic] Turner Thursday, as ability promise. problem Chicago ^[*] (Miguel and re- follow- asking Flutes Flutes crime in re- are total rea- Mr. co- in- to 3. The relevant vided: (Emphasis Counsel for the high leged conspiracy: just in A. fendants A. Both Garcia and doing That means in one what this A. "This is seven kilos a $42,500, this officer in Miami. conservative estimate. We talk about the about million other 256 thousand Q. cocaine deliveries in Q. it Q. Q. MS. Their was rock bail bond noted the an And who made that [OFFICER When What did [MS. WIRTH]: from this officer not officer, they ever you people their other officer, WIRTH: Chicago they ability one that means in one added). counting made as what that substance was? boast you and I entire like, over business testimony hundred 88 dollars they say? way TURNER Yes. Chicago they week, per to viewed the prosecution that And Chicago based have an can to do ability Miami and not business year year just percent Was Miguel seven kilos week with would make 14 million did they at a Chicago. we have heard the de- imagine. upon your experience ]: magnitude representation? New York and to do business. counting or that mean there Officer ability substance are purchase has would make one cocaine.” have Flutes [sic]. month any with arguing making And been done I think way beyond Based Turner other state. representa- this per New York including of the al- just they price officer month talked for a other you? with they pro- is a saw are dealings $607,722. future discussed which Garcia street value of Although Garcia explained anticipated supplying he denied at the second hearing having discussed “at the sale Turner with least six seven kilo- Officer Turner, cocaine, he did grams every week, nothing to prefera- one controvert at the first or hearing the second Thursdays.”4 govern- bly on Turner also testified ment’s Fleites, that he had confederates, no contacts one of Garcia’s with Illinois much less the city Chicago. him, who was arrested with had stated that they trafficking in were also narcotics At a subsequent hearing bond reduction York, Chicago the cities of New Miami and later, little more than a week on October and that Fleites on one occasion had kill 3, 1985, in which the trial heard 58 person problem because pages of transcribed testimony, the circuit transaction and intimated he would kill court reduced Garcia’s bail bond from $12 partner Turner or his if they he discovered $607,000.6 million to At the hearing, same enforcement police were law officers.5 The requested Garcia a further reduction of his report detailing bail, Garcia’s arrest states that which was denied. He appealed then possession the cocaine in Garcia’s $607,000 had a the denial of the bail reduction 5. The relevant 4. The relevant compatriot 25, 1985, hearing provided: examination is: Friday, A. a small Q. ness? stated to doing Mr. Flutes A. Yes. rect? ably Q. we day throughout A. We talked about the transaction which was for 2 kilos of cocaine for this time. We talked about kilograms ness in the amount of at least six to seven stated that that amount was in excess of what A. this will be the estimated street value which Q. learn about the cocaine? and Flutes [sic]. Q. chart. was to cocaine or better than 90 states came out to be A. Q. out the street value? A. That it was in fact cocaine of a The quality. really [OFFICER TURNER Mr. Flutes That would amount to about one kilo [MS. WIRTH]: What did And relative to [OFFICER [OFFICER TURNER Per the [MS. [MR. following exchange them, six or seven categorically it doesn't make pay It is man, Thursdays. me Mr. Fleites ZUNGANELIS How did wanted to WIRTH]: by [sic] to Mr. Garcia and for 90 what did that there would be put cocaine, small in Garcia’s testimony regarding TURNER $607,722, about his the entire out ability keys per states that at 90 pay provided: doing From whom did one attorney, you size, ]: ]: ]: from the ]: to obtain additional but we would and it’s a 1984 chart. took every percent, ability From both Garcia learn from them? difference. year, doing and he has done further business week, government you place Mr. $85,000. week, no is that cor- future busi- to do busi- September hear from we have a high grade Thursday, you figure Zunganel- $42,500 on cross- problem Garcia’s percent percent prefer- pay He is [sic] you per it I 6. The written order that the circuit court en- ever, indicates that bond for Garcia was set at the bond $670,000. Garcia was set at tered on October (Emphasis set the bond cent of the bail and as to the value. There- fore, Defendant to it case as the case me and I have to resolve it. I look Class X person. A. Q. time transaction we were in he is not transaction and in this business transaction wants us all to understand what that nature of this transaction is. He also stated to me that enforcement official or would have to take the same action that he if he took in Miami to cover some ferently also stated to me that Miami. He stated that kilos because he is [THE WITNESS not his. He stated to me that he is from caine in Miami and that he had to kill that he had a transactions before and will continue to do he could not afford to take a fall on the two transactions, he wanted some THE COURT: I have the issue in front of $150,000 police, to me If What did after on Mr. Garcia and on Mr. received he discovered ^[******] hearing felony, in Miami and in one The added). trying the transaction that we were in under problem he would kill on Mr. at transcript but in this deposit $670,000 cash, and the Court you interpret held on October where the $607,000. Section type to create a (OFFICER TURNER)]: piece Noriega, responsible with a transaction during a sum this anyone fact reflects that bond for myself particular things security 110-7, legislature paper The cash. equal the course in fact a business previous problem, may require and I will make hearing were done dif- similar that he for police stating Fleites, transcript type inasmuch as from a law my to 100 transaction it, to mean? partner. incident but it is but he or speak- states: it is a I will how- loss. per- fact this any co- He ruling Appellate to the Illinois Court which street value” as stated the federal dis- appealed Garcia next denied same. judge. trict The respondent appeals the Court, Supreme the Illinois and that court district court’s granting decision Garcia a refused to disturb the circuit likewise court petition corpus for habeas to this court. $607,000. at decision Illinois Following Court’s II. affirmance of the Illinois circuit court’s de of his for a reduction nial motion further appeal, On the respondent, the Sheriff of bail, petitioned Garcia federal district County, Cook argues that the district court corpus. a writ improperly granting peti- Garcia’s granted petition district court for a writ of habeas since the holding corpus, a writ of habeas that the Illinois circuit court did set Garcia’s arbitrarily Illinois circuit court acted in set arbitrarily. Garcia main- ting at Garcia’s bail in violation of tains the grant- properly district court Eighth and Fourteenth Amend ed him writ of a since the stating rights ment controls this “[w]hat $607,000bail amount arbitrarily exces- judge habeas case is that the state court setting Garcia, sive. In bail for the state cannot, reaching decision, do what trial heard and considered has done to Garcia: sur regarding the factors enumerated the judicial his render discretion favor of Illinois Bail Act.7 setting a bail amount to identical the In Boyle, Stack v. 342 U.S. 72 S.Ct. value, drugs’ street on the mistaken as 1, 3-4, (1951), 96 L.Ed. 3 the United States sumption Assembly the Illinois General has the Court addressed issue what of equated street with value reasonable bail.” Eighth constitutes excessive bail under the Elrod, 922, Garcia v. 643 925 Amendment and (N.D.Ill.1986) added). stated that bail is not ex- (emphasis Since the “reasonably cessive if it is record the establishes street value of calculated” the drugs $607,722, by setting presence assure the defendant’s at at trial. $607,000 the In state court did not Zylstra, set United States v. 713 1332 F.2d (7th an drugs’ Cir.1983) “amount identical we stated: Act, 38, para. The Illinois Bail Ch. by Ill.Rev.Stat. information offered the State or defendant. 110-5(a-b) proffer by states: upon A the State must be based a report. written All evidence shall be admissi- (a) determining In the monetary amount of regardless ble if isit relevant and reliable of release, any, bail or conditions which will of if whether it would be admissible under the reasonably appearance assure the a of defend- trials, applicable rules of evidence at criminal required safety any as or ant the other of (b) The amount of bail shall be: shall, person community, or the the court (1) compliance Sufficient to assure with information, the basis of available take into bond; set conditions forth in the bail account such as matters the nature and cir- (2) oppressive; Not charged, cumstances the the condi- of offense (3) ability Considerate of victim, the financial of filing the the likelihood of the of the accused. greater charge, weight aof the the evidence (4) person charged drug When a a ties, against defendant, family such his em- involving possession related offense ery resources, or deliv- ployment, financial character and condition, conduct, possession delivery of cannabis or past or of a prior mental use of birth, controlled substance defined in Canna- length as the alias names or dates of resi- Act, amended, bis Control as community, or the Illinois foreign dence in the a whether Act, amended, Controlled Substance as lawfully national defendant is admitted in the America, drugs full street value of the United States of seized shall be the amount of unre- proceeds considered. alleged covered lost as “Street value" shall be deter- a result offense, convictions, by proffer by mined the court on basis record of record appearance upon proceedings, flight based at court State reliable information of prosecution, escape avoid arrest or or law at- contained in writ- enforcement official arrest, tempted escape report to avoid ten failure to to the amount and such seized appear proceedings. proffer may by at court Information be used the court as to the by findings used the court in its or stated in current street value unit smallest drug or offered in connection with this Section seized. may by way proffer added). (Emphasis reliable based greater bail is an amount Much drug “Excessive is highly orga- traffic reasonably necessary which is than that nized and sophisticated conducted the defendant will be syndicates.” ensure criminal long primary ‘As as the present trial. Mendenhall, States 544, United v. 446 U.S. produce is to bond reason 561-62, 100 S.Ct. 64 L.Ed.2d amount, presence, the defendant’s final (1980) J., (Powell, concurring) (empha type, other conditions of release are added). sis As noted in the dissent Unit within the sound discretion the releas- Williams, ed (7th States v. 798 F.2d 1024 authority, and we review Cir.1986): “ abuse of that discretion.’ an United doubt, public ‘Without a has a James, (11th F.2d States strong interest in prosecuting narcotics Cir.1982).” dealers.’ Regilio, United States v. added). (emphasis Zylstra, Id. at 1337 (7th Cir.1981). F.2d ‘Traffic involving case multi-million dollar in illicit is a matter of pressing syndicate smuggling known as the “Com- national United concern....’ States v. pany”, the defendant contended that the Zylstra, (7th 713 F.2d Cir. Eighth federal trial court violated his 1983). Drug can produce abuse and does rights reinstating Amendment its earlier devastating effects in the lives of our $1,000,000cash day bond on third of his Americans, governmental fellow and our Although ruling Zylstra trial. involved a agencies allowed, must be within con during trial a federal trial and of fines our'cherished constitutional safe pro- state court instant case involves bail guards, effectively prosecute drug trial, sup- ceedings reasoning before our conspirators country in this re [which Zylstra’s porting rejection argument the of quires presence their at trial].” applicable: equally is (Coffey, 798 F.2d at dissenting). J. knowledge “It a matter of common case, present In the the circuit court prosecution big-time illegal the that considered Garcia’s bail bond on three occa drug trafficking frequently hampered sions, setting the first time when his bail witnesses, prosecutors by threats to and and the second and third times when con judges, even too car- all often are n sidering bail motions for reduction. The ried out. Traffic in illicit is a judge granted state trial the first motion pressing matter of and national concern reduced the bail from million to $12 and properly the court was in trial interested $607,000 but denied to re another motion seeing that at least one the member of hearings, duce it further. In bail the the ‘Company’s’hierarchy present would be judge occupies trial heard during in evidence that his entire trial.” pages testimony. some 87 The second (emphasis added). Id. at 1337-1338 hearing only slightly was held than a more will judge not assume when the state trial hearing, week the after first bail in which in presiding this conducting case was the the testimony heard extensive hearing, second he bail that had either for- concerning background aswell gotten had transpired previous at the magnitude accomplice’s the of his and his hearing (eight before) days he or that present past activity in cocaine traf was in trance or oblivious to the ficking. transcript of the October problems besetting country today. our 1985, hearing establishes that the state growing prob- Justice Powell has noted the gave considered and involving drug trafficking: lem credence September earlier the public compelling “The has a interest hearing involving Garcia: detecting those who would traffic thing deadly drugs personal my THE COURT: The profit. New crossed was, course, I problems affecting mind. That is the health and wel- this: the population, Judge sitting original fare our particularly our the bond hear- greater young, ing, cause I concern than officer notice is not here escalating purposes use of controlled substances. the record. correct. sent an MS. That’s WIRTH: unwarranted interference the operation the state’s criminal Now, you, gentlemen,

THE COURT: justice system.” present at time obviously. were (emphasis added). Id. at 1133 We also DEL VALLE for Garcia MR. [Counsel “ Fitzgerald stated in ‘the only that issue That’s correct. and Fleites]: to be presented resolved federal court for Noriega]: ZITZER MR. [Counsel corpus petition with a habeas that com- That’s correct. plains of excessive bail is whether great I THE remember a COURT: deal judge has arbitrarily part. in the first of what occurred Obvi- ” (quoting Woodson, bail.’ Id. Simon v. ously you you wouldn’t know unless (5th Cir.1972)) 454 F.2d (emphasis Maybe pass read the record. we should original). Hedman, Mastrian copy A the moment. this for (8th Cir.1964), F.2d 708 a state court set given morning, to me this record was so bail at for a criminal defendant why don’t we take a look it. You did under indictment for murder. The defend- copy? get petitioned ant the district court for a writ DEL VALLE: not. MR. We did on grounds that the like you THE Would to take COURT: amount of bail was and arbitrary. excessive look at it? petition The district court denied the MR. ZITZER: Yes. If we read the refused to issue defendant a certificate incorporate argu- record and some probable appeal, Eighth cause. On place ments that took on and what has Circuit, affirming the district court’s de- Court, already told to the been we can cision, stated: memory. refresh our might “There have been room for a MR. DEL VALLE: Did Defendants judgment difference amount of testify at that time? bail, but consideration a federal court They THE COURT: did not. given upon could not be asked or bail. the Illinois trial court’s decision There was no need for the state trial judge in percent sue which great THE repeat bail and ^[*] record COURT: We still have the is- deal, Court what Appellate ^[*] you everything. refused barely properly did not hear. that ... ^[*] been Court and the Illinois to disturb the state I week before. Both regarding accepted can remember 100 clearly ^[*] I did hear a ^[*] established $607,- ^[*] violation of due violation of toriness against petitioner, so as to constitute a have to ent rationally basis. A federal court would not be enti- arbitrariness tled range elements that of right provided, to act in the amount differ within which did equal protection.” in the in application substitution of would have the administration of the process, in the situation. state court. What the in relation to the so as to constitute a its effect judgments toor of the discrimina- judgment It would right beyond appar- could legal as Fitzgerald United States ex rel. Id. at 711. Jordan, (7th Cir.1984), 747 F.2d 1120 we case, granting The court in this district stated: corpus petition, Garcia’s habeas stated that determining “In whether bail is ‘rea- judge the state court his “surrendered] calculated,’ sonably the federal courts and, discretion” any analy- without further expected cannot be to conduct a de novo sis, held that Illinois circuit court had hearing for every corpus bond arbitrarily setting Garcia's bail at

case comes it. This that before would $607,000 figúre approximately that since further burden the federal court equalled the street value of the cocaine system having difficulty that now is deal- seized was The when Garcia arrested. dis- increasing number of “Though with the habe- trict court further stated that: petitions, repre- as but also did not his would articulate rea- case, acting we as he did Garcia’s have sons before us here at the bottom of plain judge’s page is is that decision relative to Prior, street value. controlled by the asserted street value was I think the Act something said about Elrod, Garcia v. narcotics....” testimony of the officer. The new Act (N.D.Ill.1986) (emphasis suggests that a report written would suf- original). Finally, judge the federal found personal fice in lieu of testimony. judge, that the bond set the state trial THE I COURT: notice that that’s in oth- drug’s to the “identical street places er in the Act too in Section IV as (This is, value.” Id. at 925. statement well as page on the same you gave said, inaccurate, we since the record estab me, copy Edgar’s copy of Jim lishes the street value of the was statute. $607,722.) judge The federal for some rea MS. WIRTH: That point be moot apparently son refused to consider the ex which we would also state. (29 testimony pages) given tensive before THE They COURT: prof- use the word a judge state circuit court one week fer by the State must be based judge, earlier before the same trial for he report. written The report written simply judge’s states that the circuit court would be the report. arrest controlled “decision was the asserted The record further demonstrates that Gar- Id. street value of the narcotics....” cia8 resided Miami and frequent made original). (emphasis The record re trips to Colombia. He also continued to veals that the Illinois circuit court Colombia, have extensive ties in where he testimony heard extensive about Garcia’s building a house and where members activity in a nationwide cocaine traffic con family of his still Testimony resided. spiracy as well as about his lack of ties Fleites, colleague also offered that his Chicago community conspira and his alleged drug conspiracy, had killed an (mur alleged participation tor’s in violence previous individual transaction der) necessary. when and would kill part- Officer Turner or his 3, 1985, hearing the October establishes they ner if turned out to be law enforce- that the state trial was aware of and ment officers. The seriousness of such paid credence to the factors to be con threats of lightly violence cannot be taken sidered in Garcia’s bond: since “It is a matter of knowledge common aspect MS. WIRTH: The other I wish to drug trafficking enterprise a violent discuss is a section entitled Section 110-5 government agents and that state law [and suggests the material operating enforcement undercover officers] should Court take into consideration face the constant risk of death or serious setting suggest when bond. I would to Zylstra, United States v. injury.” in Court that what is that section is (7th Cir.1983). F.2d what was in embodied the bail section transcripts before and further in from the bail hear embodied case law difference, ings clearly before. There is one establish that the circuit how- ever, only being testimony and that difference in what heard not as to the street appear page drugs would on 4 of the Act value of the but also re- Gomez, (7th ethnic, In United States v. F.2d 417 court’s "[t]he [trial] concern was not Cir.1986), objected govern- the defendant geographic, geographic but Colombia because . sentencing hearing ment’s statement at the of reputation being narcotically of trou- has "disturbing drug trend” in cases of the fre- blesome. The flow of from certain quent immigrants involvement of of Cu- recent along people Latin countries with the flow of origin. ban and Colombian We stated: "That (cid:127) part from those countries a of the constitutes appear disturbing problem in fact to be does publically recognized, disturbing a with, problem just by narcotics to be dealt not not Guard, Immigration the authorities, and Coast Customs gener- prosecutors, but to courts and to citizens by prosecutors but courts as and ally.” rejecting Id. at 419. In the defendant’s well.” claim that the trial court relied on unsubstanti- Id. at 420-21. entry illegal ated information about his States, Colombia into the United we said: (1) garding: charges the seriousness of the setting abused his discretion in bail against (delivery of a $1,000,000 Garcia controlled sub- at reinstating or it on the third drug stance conspiracy), and calculated a of day trial. Zylstra The defendant in was felony Class X carries a sentence of large drug involved a conspiracy in years not nor thirty less than six more than 200,000 pounds which over marijuana of convicted; years (2) if Garcia’s involvement smuggled were into the United States over drug large operation a distribution year period. a three ease, the instant Miami, York, Chicago New and ar- and testimony was offered at hearings the bail rangement to sell Turner Officer kilo- two that Garcia drug was a member of violent grams cocaine, possibility with the conspiracy operating that was in several selling kilograms six seven of cocaine on major (New York, United States cities Chi- future; weekly (3) basis in the state- cago, Miami) and and anticipating be- colleagues ments one Garcia’s that he ing able six kilograms to sell to seven had once had to kill an individual because cocaine each week to Officer Turner and drug problem transaction and make thus over $14 million in sales to Offi- partner would kill Turner his if he dis- cer Turner in Chicago. alone We have they were covered enforcement offi- law previously opinion, noted this many and cers; (4) the fact that Garcia and his co- previously, times the nation’s extreme con- conspirators stood to make over million $14 cern, including responsibility annually sales with Officer Turner courts, increasing with the problem of drug city Chicago; (5) alone in the trafficking devastating and its perva- city Chicago lack of ties to the or state sive effect on country, especially this its Illinois; (6) the fact that Garcia lived and young. Miami, Florida; (7) worked in the fact that place, It neither our nor a federal family members of Garcia’s lived in Colom- judge’s prerogative guess district to second frequent bia and trips Garcia made to Co- a state bail court’s decision when the lombia; (8) the fact that Garcia was record demonstrates the absence a con- building a house in Colombia. These Despite stitutional violation. abundant tes- factors when considered in the context of timony likely that Garcia was a candidate the total bond risk situation establish flee, required and thus a bail at least the circuit court did set constitutionally equal to the amount as the set one excessive bail bond judge, state trial the federal trial court $607,000, since the replete record is found the figure “certainly to be arbi- clearly salient factors that demonstrate trarily stating: excessive” likely Garcia was a candidate to flee: “With all relevant evidence before charged he drug offenses, with serious court, proper and with the consider- possible prison thirty faced a sentence of being applied, perhaps ations it is con- years, and was known to now be traffick- might ceivable that in bail large narcotics scale though called on the record before city Chicago, but also in York for— New Judge Kowalski that amount was cer- Thus, rights Miami. Garcia's under tainly arbitrarily excessive, and that Eighth and Fourteenth Amendments suggest any record does real not likeli- were not violated. that inquiry hood further would show We previously have stated that “While figure proper.” that to be we may necessarily agree not with Elrod, 922, F.Supp. Garcia v. 643 set, amount of we will overrule the (N.D.Ill.1986) added). (emphasis The feder state trial court’s determination as to the al also intimates that Garcia was no amount of bail unless its decision was made longer a to flee: candidate arbitrary in an manner.” United ex States Jordan, Fitzgerald rel. the legitimate “And course constitu- F.2d (7th Cir.1984). In United tional States v. considerations bond— (7th Zylstra, Cir.1983), essentially 713 F.2d 1332 ap- we to assure the defendant’s refused to hold that pearance a federal trial court required court when and to $607,000 gives persons other and bail at since the record more safety assure ample support than to his decision. community not at all arithmeti- —are in- to the amount cally proportionate do, holding In are we we mindful (at drug transaction least volved in the Mr. Justice of what Holmes stated Ros case, where, the defendant no as in this Ward, chen v. U.S. S.Ct. or their value longer has either (1929): 73 L.Ed. 722 is no “[t]here potential means and incentive as a against using common sense in con canon flight).” struing saying they obviously laws as considering mean.” hold that the am We (emphasis original). We Id. at 924-25 ple made before the Illinois state record disagree the district court’s belief that with (87 pages testimony) circuit court longer no a candidate to flee. Garcia was discretionary its bail decision was neither (1) he had been The record establishes “arbitrarily excessive” nor identical to the that called for a charged with offenses drugs’ amount of the street value as al imprisonment if possible thirty years of leged by corpus judge. the habeas We convicted; (2) member of a violent he was a grant judge’s hold the federal of Garcia’s known to be drug conspiracy that was now corpus petition “an habeas unwarrant York, Mi- operating Chicago, New and operation ed interference in the of the (where co-conspirators one of Garcia’s ami justice system.” state’s criminal A federal killing in a professed to someone opinion court should neither substitute its transaction); (3) oper- a hit run he was appropriate an as to what amount of bail poison community ator who would should be nor decide what factor should be run; (4) illegal drugs sale of given greatest weight, in the absence anticipated being provide able to conspiracy of a constitutional violation. The decision kilograms per of cocaine week six to seven granting district Garcia writ (which bring Turner would them to Officer is reversed. $300,000 per week from sales to almost EASTERBROOK, Judge, concur- Circuit alone), Turner and stood to make Officer ring. year Chicago million over each $14 opinion, analyzes I join the court’s alone; (5) Turner Garcia had no sales to persuasively the record and shows that the with either the state of Illinois or contacts “arbitrarily” in set- state court did act (6) city Chicago; he had numer- $607,000. ting at The court Garcia’s bond In Zyls- ous connections with Colombia. question put only the sheriff answers tra, supra, justified the trial pass should not unnoticed to us. Yet it reinstating the defendant’s bond of wrong question. that the sheriff asked the $1,000,000 since the wealth of evidence gave against the defendant him more than Court of the Circuit just flee. For the reasons an incentive to to set. The County Cook decided what bail above, clearly outlined the record establish- appellate court affirmed. large participation es that Garcia’s the case and Court of Illinois reviewed drug conspiracy gave him more than pro- in turn. The district court affirmed to flee. an incentive consideration a ceeded as if it had under of the Su- appeal direct from the decision why fail to understand the district have preme Court of Illinois. And now we opinion states judge in his memorandum court— appeal the direct from the district challenge the con- “Garcia [does not] (and the thir- making us the fifth court stitutionality recently Illi- enacted teenth, fourteenth, judges) and fifteenth Act,” yet nois Bail right amount whether is the ask gratuitous it himself to make a takes of bail. no in- finding that “There is constitutional jurisdiction firmity exercising “appellate” in the its erroneous an Act— Illinois, the Supreme hold the Court of application here.” Id. at over the Judge asked whether Kowal- not set a district court state court did bail or, if he under- ski had constitutionally excessive manner in misunderstood— 356 stood, misapplied Illi statute of to ask whether the error of state law vio- —the 11110-5(b)(4), so, ch. 38 lated

nois. See Ill.Rev.Stat. the Constitution. Even an error is a person charged which a is itself violation of the states: “When Constitution. It enough to issue the of related offense ... the full writ a corpus, the district court did. The stat- street value of the seized be shall governing ute corpus pro- writs of habeas expressly considered.” The district court vides a judge may federal a release court, presum found the circuit prisoner custody state’s if the is “in ably Illinois, Supreme the Court of of violation the Constitution or laws or erred in the of Illinois application law. As treaties of the United States”. 28 U.S.C. it, put judges the the district court state 2241(c)(3). may “A federal court not is- § “on assumption the mistaken Illi the perceived sue the writ on the of basis Assembly equated nois General has street Pulley Harris, error of state law.” v. 465 It value with reasonable bail. has not. 41, 37, 871, 875, 104 U.S. S.Ct. 79 L.Ed.2d infirmity There is no unconstitutional in the (1984). 29 See Isaac, also Engle v. 456 only in application its erroneous Act— 107, 21, 1558, 119-21 & U.S. n. 102 S.Ct. Elrod, 922, here.” v. Garcia 21, (1982). 1567-68 n.& 71 L.Ed.2d 783 Cf. (footnote (N.D.Ill.1986) omitted). As Hospital Pennhurst State School & v. case, the the sheriff has briefed we are to Halderman, 89, 106, 465 U.S. 104 S.Ct. correctly decide who understood Illinois (1984) (“it 79 L.Ed.2d 67 is diffi- law, the state courts or the federal district greater cult to think of a on intrusion state judge. sovereignty than when a federal court in- may Yet federal not disagree court structs state officials on how to conform with the state courts’ of construction state law.”). their conduct to state Pitcairn, law. Herb v. 324 U.S. 125- eighth potentially amendment makes 459, 463-64, 65 S.Ct. 89 L.Ed. 789 pertinent errors through of state law the (1945). judges State law means what state definition of “excessive” bail. That lan means, say (for it as federal law means guage Rights comes from the Bill of purposes judges the of inferior federal Sess., II, Mary, Wm. & 2d ch. courts) the Court of the I(10). Blackstone, 4See William Com § United States it concludes means. If elev- on England mentaries the Law *294-96 en judges, including state a unanimous Su- (1769). grew struggles It out between preme Illinois, Court say Crown, Parliament and the principal and a right bail, the they have defined the mean- provisions function of the from which it ing of state law. The decision the Su- prevent King’s was to derived preme question Court of Illinois judges abrogating the distinction be state law cannot be “mistaken” for the (capital) tween bailable and nonbailable of purposes of a It may federal court. be Edwards, fenses. United v. See States mistaken judges sense that state (D.C.1981)(en banc), 430 A.2d themselves, later legisla- will reverse or the thorough thoughtful contains discus ture will declare judges that the have not background sion of the clause law; grasped purport but it is eighth amendment. We took the lan not mistaken in the sense that federal guage wholesale, and “when this clause may court judgment. set aside the far So carried Rights, over into our Bill of concerned, as the federal courts are nothing was said that indicated differ scrupulously circuit court adhered concept.” Landon, ent Carlson law of Illinois. We must ask not whether 525, 536-37, U.S. S.Ct. 96 L.Ed. law, obeyed but omitted). (1952) (footnote When the whether his eighth decision violated legislature wants bail to be available for amendment to the Constitution. arrested, judiciary may those not coun may genuine A federal court encounter a by imposing termand the decision “exces error of state an appellate law when court legislature sive” When the bail. makes an non-bailable, within a state declares that the trial imposi offense or allows the necessary bail, made a may high judicial mistake. Then it branch violating warning implement the decision without that the district court cannot and should not in every review record case Constitution. judgment to make a de novo the “exces- imple this rule to the application The Only siveness” of the bail. if the choice is of the United States mentation of statutes is, “arbitrary” only if way it is off —that sense, perfect makes by federal courts the mark to conclude that a certain amount original meaning of it carries out the of bond is within the constitutional stan- language, Eng one we inherited from may a federal court issue the writ. dard — apply the rule to land. It is harder “arbitrariness”, The search for in other courts, separation it assumes a because words, designed scope is to reduce the legislature judiciary between functions federal review. This is how the court employ. states need not So far as Fitzgerald today. reads The inquiry is like concerned, may are states federal courts the one Virginia, Jackson v. 443 U.S. powers apportion governmental largely as 318-19, 2781, 2788-89, 99 S.Ct. 61 L.Ed.2d they please. City Newport See v. Iaco (1979), employs to decide when evi- — U.S. —, 383, 385-86, bucci, 107 S.Ct. constitutionally dence is sup- insufficient to (1986); Highland 93 L.Ed.2d 334 Farms port a conviction. We should ask: Could Dairy, Agnew, Inc. v. U.S. judge reasonable believe that (1937); 81 L.Ed. 835 Hug S.Ct. constitutionally permissible was a bond for 798 F.2d gins Isenbarger, v. 207-08 If the Garcia? bond is within the substan- (7th Cir.1986) (concurring opinion); United range person tial that a reasonable could Bend v. Beverage Co. South Indiana “excessiveness”, conclude falls short of Commission, Beverage F.2d Alcoholic district court must decline to issue the writ. Cir.1985). (7th It is therefore doubtful pursue The court does not the lines of amendment, if eighth “incorporat that the inquiry suggested, I have because the state applied through ed” and to states the four did not ask to. The sheriff us wanted us to teenth, properly separation-of- serves the right, Judge determine who was powers applied function it has when properly Shadur. The court con- cases the federal courts. The inquiry questions preserved fines the Court has never hinted that the bail clause the district court. The state has received of powers controls the allocation within right question answer to the before us. indeed, the Court has never held states — prevent ques- I trust that this will not (This applies that it to the states. is still being tion from recast a future case. question present another the sheriff did not decision.) Because of the differences functions, the allocation of if the clause all,

applies to the states at “errors” of by state courts are

state law to be correct processes (judicial political) ed such COLAN, Plaintiff-Appellant, David as the state makes available. opinions From time to time of this court CUTLER-HAMMER, INC., Corpo- Eaton question for put have decision as Inc., ration, Company, Koppers judge “arbitrarily” whether a state Defendants-Appellees. E.g., United States ex rel. bail. No. 86-2013. Jordan, 747 F.2d Fitzgerald v. (7th Cir.1984). This be taken an Appeals, Court United States invitation to review the record and measure Circuit. Seventh against the evidence the standards of state 9, Argued Jan. law, as the district did. The constitu- 24, 1987. Decided Feb. though, question, tional whether bail meaning “excessive” within of the Rehearing En Banc Rehearing and eighth purpose amendment. of the 25, 1987. Denied March language, in Fitzgerald is not to set the appellate district as an over tribunal state; supreme it is a

Case Details

Case Name: United States of America, Ex Rel., Alvaro Garcia v. James F. O'grady, Sheriff of Cook County

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 20, 1987

Citation: 812 F.2d 347

Docket Number: 86-2559

Court Abbreviation: 7th Cir.