United States v. Nezaj

657 F. Supp. 232, 1987 U.S. Dist. LEXIS 2091

Opinion

MEMORANDUM OPINION

SWEET, District Judge.

As set forth in the court’s opinion of March 12, 1987, after a hearing on March 10 and March 11, the court followed the Honorable Amalya L. Kearse’s opinion in United States v. Salerno, 794 F.2d 64 (2d Cir.1986), and the Honorable Jon 0. Newman’s opinion in United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.1986), in holding that the preventative detention provisions of the Bail Reform Act of 1984 violate substantive due process.

After the court issued its decision, the government indicated that it would move the court to reconsider and would also appeal the decision as it stands. In the meantime, the government asked the court to stay its decision pending both the appeal and the motion to reconsider. The court asked the government to submit authority for the proposition that, pending appeal or reconsideration, the court should apply a statute that it and two Second Circuit panels have found unconstitutional. The government submitted no such authority, and, consequently, their application for a stay pending appeal was denied, as was their application for a stay pending their motion to reconsider in this court.¹ However, the court did stay its decision until Tuesday, March 24, 1987, (when motions are heard in the Court of Appeals) to allow the government to seek a stay from the Second Circuit.

The court entered an order to this effect from the bench, and the government informally applied to chambers for the court to reduce that order to writing in order to expedite the process of filing for a stay in the Court of Appeals.

IT IS SO ORDERED.

1 . The motion to reconsider is scheduled for argument on an expedited basis this afternoon, March 23, 1987.