Opinion
1:15-CR-00033 EAW
2023-03-14
UNITED STATES of America, v. Roderick ARRINGTON a/k/a Ra Ra, Defendant.
Paul C. Parisi, Timothy C. Lynch, Government Attorneys, Jeremiah E. Lenihan, Mary C. Kane, U.S. Attorney's Office, Buffalo, NY, Bethany Jane Lipman, U.S. Department of Justice/Organized Crime Section, Washington, DC, Julie Ann Finocchiaro, Government Attorney, U.S. DOJ, Criminal Division, Washington, DC, for United States of America. Mark A. Foti, Rochester, NY, Robert Charles Singer, Singer Legal PLLC, Williamsville, NY, for Defendant. Roderick Arrington, Lockport, NY, Pro Se.
Paul C. Parisi, Timothy C. Lynch, Government Attorneys, Jeremiah E. Lenihan, Mary C. Kane, U.S. Attorney's Office, Buffalo, NY, Bethany Jane Lipman, U.S. Department of Justice/Organized Crime Section, Washington, DC, Julie Ann Finocchiaro, Government Attorney, U.S. DOJ, Criminal Division, Washington, DC, for United States of America. Mark A. Foti, Rochester, NY, Robert Charles Singer, Singer Legal PLLC, Williamsville, NY, for Defendant. Roderick Arrington, Lockport, NY, Pro Se.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
I. INTRODUCTION
Defendant Roderick Arrington a/k/a Ra Ra ("Defendant"), currently proceeding pro se, is held in pretrial custody and seeks release pending his third jury trial in this matter scheduled to commence on May 22, 2023. (Dkt. 923; see Dkt. 976 (pretrial order scheduling jury trial to commence on May 22, 2023)). Defendant also seeks temporary release from custody for 72 hours to attend funeral services for his father and perform related tasks. (Dkt. 981; see also Dkt. 986). For the reasons set forth below, the pending motions (Dkt. 923; Dkt. 981) are denied.
II. BACKGROUND
Defendant was first charged by criminal complaint filed on October 31, 2014, in case number 1:14-cr-00204. (See United States v. Arrington, Case No. 1:14-cr-00204, Dkt. 1 (criminal complaint)). The complaint charged Defendant with violations of 21 U.S.C. § 856(a)(1) (maintaining 82 Girard Place, Buffalo, New York, for drug trafficking activities), 18 U.S.C. § 924(c)(1) (possessing a firearm in connection with the drug premises charge), and 18 U.S.C. § 922(g)(1) (possession of a firearm by a convicted felon). (Id.). The charges were based on evidence recovered during execution of a search warrant at 82 Girard Place in Buffalo, New York (Defendant's mother's residence), on October 31, 2014. (Id. at 4).
Defendant was arrested that same day and an initial appearance was held before United States Magistrate Judge Hugh Scott on November 1, 2014. (United States v. Arrington, Case No. 1:14-cr-00204, Dkt. 2). A detention hearing was held on November 13, 2014, and Magistrate Judge Scott detained Defendant finding "flight risk by preponderance and danger by clear and convincing evidence." (United States v. Arrington, Case No. 1:14-cr-00204, Dkt. 11).
By the time of the detention hearing, an indictment had been returned charging Defendant with the following four counts: (1) possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (2) maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; (3) possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A); and (4) possession of firearm by convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (United States v. Arrington, Case No. 1:14-cr-00204, Dkt. 9). All of these charges were related to evidence recovered during execution of the search warrant at 82 Girard Place. Approximately seven months later, a superseding indictment was filed against Defendant and various co-defendants in case number 1:15-cr-00033, resulting in the dismissal without prejudice of the indictment filed in case number 1:14-cr-00204. (Dkt. 40).
The superseding indictment returned on June 19, 2015, charged Defendant with the following twelve counts: (1) racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) (count one); (2) narcotics conspiracy in violation of 21 U.S.C. § 846 (count two); (3) possession of firearms in furtherance of crime of violence and drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (count three); (4) murder in aid of racketeering activity in violation of 18 U.S.C. §§ 1959(a)(1) and 2 (count seven); (5) discharge of firearm in furtherance of crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2 (count eight); (6) discharge of firearm causing death in furtherance of crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j)(1) and 2 (count nine); (7) attempted murder in aid of racketeering activity in violation of 18 U.S.C. §§ 1959(a)(5) and 2 (count ten); (8) discharge of firearm in furtherance of crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2 (count eleven); (9) possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (count twelve); (10) maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (count thirteen); (11) possession of firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i) (count fourteen); and (12) possession of firearm and ammunition by convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (count fifteen). (Dkt. 17). At the arraignment on the superseding indictment before Magistrate Judge Scott on July 8, 2015, Defendant remained detained. (Dkt. 18). On December 16, 2015, attorney Andrew LoTempio filed a notice of appearance on behalf of Defendant, indicating that he had been retained to represent Defendant. (Dkt. 65).
Jury selection in Defendant's jury trial commenced on or about September 11, 2017. (9/11/2017 Minute Entry). On September 25, 2017, the jury returned a verdict finding Defendant guilty of the following counts: (1) racketeering conspiracy charged in count one and finding that with respect to that count, Defendant intentionally and unlawfully caused the death of Quincy Balance; (2) narcotics conspiracy charged in count two and finding that Defendant conspired to distribute 5 kilograms or more of cocaine, along with cocaine base, and marijuana; (3) possession of firearms in furtherance of crime of violence and drug trafficking crime charged in count three; (4) murder in aid of racketeering activity charged in count four; (5) discharge of firearm in furtherance of crime of violence charged in count five; (6) discharge of firearm causing death in furtherance of crime of violence charged in count six; (7) attempted murder in aid of racketeering activity charged in count seven; and (8) discharge of firearm in furtherance of crime of violence charged in count eight. (Dkt. 240). The jury acquitted Defendant of the charges in counts nine through twelve, all of which stemmed from the October 31, 2014 search warrant of 82 Girard Place (the basis for the original charges filed in case number 1:14-cr-00204). (Id.).
A redacted indictment was used during the trial with certain counts renumbered, as follows: count seven was renumbered count four; count eight was renumbered count five; count nine was renumbered count six; count ten was renumbered count seven; count eleven was renumbered count eight; count twelve was renumbered count nine; count thirteen was renumbered count ten; count fourteen was renumbered count eleven; and count fifteen was renumbered count twelve. (Dkt. 239). Counts one, two and three were not renumbered. (Id.). Hereinafter in this Decision and Order, the numbering of the counts will be to those used in the redacted indictment.
Count five was ultimately vacated as a lesser-included offense of count six. (See Dkt. 523 at 19 n.2).
On December 20, 2017, United States District Judge Richard J. Arcara sentenced Defendant to an aggregate prison sentence of two terms of life imprisonment to run consecutively to each other, plus 30 years imprisonment to run consecutively with an aggregate term of five years supervised release. (Dkt. 310 at 2-3). Defendant appealed his convictions and sentence, and on October 18, 2019, the convictions were vacated and the case remanded for a new trial. (Dkt. 523). The Second Circuit held that the evidence presented at trial had been sufficient to support each count of conviction, including Defendant's convictions for murder and attempted murder in aid of racketeering in violation of 18 U.S.C. § 1959. (Id.). However, the court concluded that Defendant's Sixth Amendment right to effective assistance of counsel was violated by failing to ensure that Defendant understood the full scope of the consequences arising from his attorney's conflict of interest, including the disadvantages of a trial severance that counsel proposed. (Id.).
The prison sentence was comprised of life terms on each of counts one, two and four to run concurrently; five years on count three to run consecutive to all other counts; life on count six to run consecutively to all other counts; ten years on count seven to run concurrently to counts one, two and four; and 25 years on count eight to run consecutively to all counts. (Dkt. 310 at 2).
In discussing the sufficiency of the evidence presented at the first trial, the Second Circuit described the evidence presented at the first trial that Defendant killed Quincy Balance and attempted to kill Damon Hunter as "strong" (id. at 25), and concluded that "a reasonable jury could find beyond a reasonable doubt that Arrington murdered Balance and shot at Hunter in retaliation for Davison's murder and to protect the Schuele Boys' drug trafficking business, although the connection between the murder and the business itself is a close call." (id. at 21-22). The Second Circuit also noted that with respect to the charged narcotics conspiracy, "a reasonable jury could have found that Arrington's role and offers to serve as 'muscle' assisted his co-conspirators' drug trafficking activities." (Id. at 22; see id. at 24 ("Arrington served as an enforcer for the Schuele Boys, able and willing to hurt people who crossed its members.")). There was limited evidence about Defendant's participation in the organization's core drug trafficking activity, but a reasonable jury could conclude that Defendant held a position within the enterprise—albeit a "low and peripheral one." (Id. at 24).
The Circuit's mandate was filed in the District Court on November 20, 2019, and the case was reopened. (Dkt. 523). Defendant was produced from the Bureau of Prisons to the District Court on January 13, 2020, and counsel was assigned. (Dkt. 527). Various matters pursued by Defendant were litigated before Judge Arcara, repeated conflicts arose with Defendant's assigned attorneys, and Defendant ultimately elected to proceed pro se. (See Dkt. 724 (Decision and Order describing in detail portion of procedural history after remand)).
Defendant sought to be released from custody, which was denied by Judge Arcara by Decision and Order entered July 8, 2022. (Dkt. 737). Judge Arcara reasoned that Defendant had failed to present "any new information that would warrant a change in his custody status pursuant to 18 U.S.C. § 3142(f)(2) or temporary release pursuant to 18 U.S.C. § 3142(i)." (Dkt. 737 at 6). Judge Arcara further analyzed the relevant factors under the Bail Reform Act, concluding that the nature and circumstances of the offense charged and the strength of the evidence weighed heavily against Defendant's release, that Defendant's history and characteristics did not support his release, and that the nature and seriousness of the danger posed to any other person or the community counseled against Defendant's release. (See Dkt. 737).
The case ultimately proceeded to a retrial commencing on September 7, 2022, with Defendant proceeding pro se and the fourth-appointed CJA counsel following remand (Mark A. Foti, Esq.) serving as standby counsel. (Dkt. 813). The trial continued until October 18, 2022, when a mistrial was declared because the jury failed to reach a verdict after five days of deliberations. (Dkt. 883). The case was then reassigned to District Judge Sinatra (Dkt. 879), who set a new trial date of December 14, 2022 (Dkt. 880), but then recused himself due to a subsequently discovered conflict of interest (Dkt. 888; Dkt. 890). The case was then reassigned to the undersigned (Dkt. 890), and at or around that same time Defendant filed a motion to dismiss on double jeopardy grounds (Dkt. 889). Defendant represented that if his motion was denied, he intended to pursue an interlocutory appeal—which would divest the Court of jurisdiction to conduct any retrial.
After briefing and argument on the double jeopardy motion (see Dkt. 909; Dkt. 920; Dkt. 921), on December 20, 2022, the Court denied Defendant's motion to dismiss on double jeopardy grounds (Dkt. 934), and Defendant filed a notice of appeal (Dkt. 936) which remains pending before the Second Circuit Court of Appeals (see Case No. 23-6002). However, because Defendant just recently changed tactics and has expressed his intention not to pursue the appeal (see Dkt. 961), the Court has now scheduled the retrial to commence on May 22, 2023 (Dkt. 969; Dkt. 976).
Defendant sought to extend the briefing on the double jeopardy motion indefinitely, arguing that he needed numerous trial transcripts in order to draft his reply brief. (Dkt. 915). The Court denied this request (Dkt. 919), and Defendant ultimately submitted a reply brief in support of his motion (Dkt. 920).
Defendant filed his motion to be released from custody on November 30, 2022. (Dkt. 923). Defendant contends that he is neither a flight risk nor a danger, and he proposes various conditions that he claims can safeguard against any such risk.
In terms of proposed conditions, Defendant states that he is poor and there is no property to post as security. (Dkt. 923 at 41). He proposes that several family members can nonetheless execute signature bonds, and that he can be placed in the custody of his ex-wife (who served as an alibi witness at trial). (Id. at 41-42). Defendant also proposes that he be placed on home detention subject to electronic monitoring (id. at 42), and various other more standard conditions (such as relinquishment of any passport and no contact with any victims or witnesses) (id. at 42-44).
The government filed its response in opposition on December 21, 2022. (Dkt. 935). Defendant filed a reply in further support of his motion on January 5, 2023 (Dkt. 938) and a further letter in support of the motion on January 20, 2023 (Dkt. 942). In addition, the United States Probation Office ("USPO") submitted a memorandum dated January 9, 2023, standing by the office's prior recommendation of detention. (Dkt. 984). Oral argument was held before the undersigned on January 24, 2023. (Dkt. 945). Subsequent to that appearance, on or about February 8, 2023, the USPO provided material related to Defendant's criminal history in Ohio. On March 1, 2023, Defendant filed an additional letter in support of the motion (Dkt. 942; Dkt. 968), and a further appearance was held before the undersigned on March 2, 2023 (Dkt. 969).
Then, while the motion was under consideration by the Court, Defendant's father passed away. This prompted the pending motion for temporary release from custody, filed on March 9, 2023. (Dkt. 981). The government filed papers in opposition to the motion (Dkt. 983), and the USPO submitted a memorandum dated March 9, 2023, opposing Defendant's motion (Dkt. 985). On March 13, 2023, the Court received a letter from Defendant, further detailing the funeral arrangements for his father and his request for release. (Dkt. 986). Oral argument on the motion for temporary release was held on March 13, 2023, at which time the Court reserved decision.
III. LEGAL STANDARD FOR PRETRIAL RELEASE UNDER THE BAIL REFORM ACT
The Bail Reform Act of 1984, 18 U.S.C. §§ 3141 et seq., authorizes and sets forth the procedures for the release or detention of a person pending trial, sentence, and appeal. The procedures and standards for release or detention of a person such as Defendant pending trial are set forth at 18 U.S.C. § 3142. See United States v. Vazquez, 113 F.3d 383, 388 (2d Cir. 1997). A defendant awaiting trial must be released unless the release will present a risk of flight or dangerousness, or both, and no set of conditions can reasonably eliminate those risks. See 18 U.S.C. § 3142.
Although there is "only a limited group of offenders who should be denied bail pending trial," United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (citations and quotations omitted), when there is "a strong probability that a person will commit additional crimes if released, the need to protect the community becomes sufficiently compelling that detention is, on balance, appropriate," United States v. Chimurenga, 760 F.2d 400, 403 (2d Cir. 1985) (citation omitted).
Because of the nature of the charges against Defendant, there is a rebuttable presumption pursuant to 18 U.S.C. § 3142(e)(3)(A) that no condition or combination of conditions will reasonably assure the appearance of Defendant and the safety of the community if Defendant is released. See United States v. Contreras, 776 F.2d 51, 54-55 (2d Cir. 1985) (holding that a grand jury indictment establishes probable cause for purposes of the rebuttable presumption under the Bail Reform Act, and when faced with an indictment, the Court does not need to make an independent finding of probable cause). The presumption shifts to Defendant "a limited burden of production—not a burden of persuasion—to rebut that presumption by coming forward with evidence that he does not pose a danger to the community or a risk of flight." United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001). "[A] defendant must introduce some evidence contrary to the presumed fact[s] in order to rebut the presumption." United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991). If a defendant satisfies this burden of production and rebuts the presumption, it does not disappear; rather, the presumption "remains a factor to be considered among those weighed by the district court." Mercedes, 254 F.3d at 436.
Even in a presumption case, at all times the government retains the ultimate burden of persuasion. Id. The burden of proof with respect to risk of flight is preponderance of the evidence. Id. On the other hand, the government must demonstrate by clear and convincing evidence that a defendant should not be released due to his risk of danger. Id.; see also Chimurenga, 760 F.2d at 405. Clear and convincing evidence "means something more than 'preponderance of the evidence,' and something less than 'beyond a reasonable doubt.' " Chimurenga, 760 F.2d at 405 (quoting Addington v. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). In other words, the evidence must support a conclusion of danger to the community "with a high degree of certainty." Id.
The statutory factors that a court must consider in deciding whether a defendant has rebutted the presumption of flight and danger, and whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, are as follows:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, . . . or involves . . . a controlled substance, [or] firearm;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
18 U.S.C. § 3142(g); see also Mercedes, 254 F.3d at 436 ("To determine whether the presumptions of dangerousness and flight are rebutted, the district court considers . . . [the factors set forth in] § 3142(g).").
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
The government argues that Defendant has not established "new and material information" to justify reconsideration of Judge Arcara's and Judge Scott's prior orders of detention, as required by 18 U.S.C. § 3142(f)(2)(B). (See Dkt. 935 at 7-8). The Court is not convinced that the mistrial qualifies as new and material information warranting reconsideration of the prior orders of detention. Nonetheless, particularly in view of the length of Defendant's pretrial detention, the undersigned has undertaken her own analysis of the relevant factors to determine whether Defendant's continued pretrial detention is warranted. To the extent Defendant expressed the desire to present witnesses at a detention hearing (see Dkt. 938 at 5), the Court declined this request because Defendant was not able to articulate a reason for these witnesses' live testimony (some of whom have testified on many prior occasions). See, e.g., United States v. Abuhamra, 389 F.3d 309, 321 n.7 (2d Cir. 2004) ("bail hearings are 'typically informal affairs, not substitutes for trial or discovery' " (quoting United States v. Acevedo-Ramos, 755 F.2d 203, 206 (1st Cir. 1985)).
A. The nature and circumstances of the offenses charged favor detention.
Defendant is facing charges involving a racketeering conspiracy and murder and attempted murder in aid of racketeering, along with a narcotics conspiracy and related firearms charges. There is no question that the charges represent some of the most serious charges an individual can face in federal court with potential penalties that could result in Defendant serving the rest of his life in prison—perhaps best reflected by the initial prison sentence imposed by Judge Arcara after the first trial of two terms of life imprisonment to run consecutively to each other, plus 30 years imprisonment to run consecutively. Thus, consideration of this first factor weighs heavily in favor of detention. Implicitly recognizing the weight of this factor in favor of detention, Defendant does not even address it in his motion to be released from custody. (See generally Dkt. 923).
B. The weight of the evidence favors detention.
The bulk of Defendant's pending motion is focused on the weight of the evidence, and he discusses in detail perceived weaknesses in the government's case, including Defendant's alibi witness (his ex-wife Iesha Arrington), and credibility issues with respect to the three witnesses who allegedly saw Defendant murder Quincy Balance and attempt to murder Damon Hunter. The government counters that the evidence is strong and weighs heavily in favor of detention. (See Dkt. 935 at 10-16). The government contests the credibility of Defendant's alibi witness—who was never identified as an alibi witness until shortly before the re-trial—and while acknowledging that each of the eyewitnesses had issues or shortcomings that were presented to the jury, they all identified Defendant as the shooter.
Throughout Defendant's motion papers he makes conclusory claims of prosecutorial misconduct. Many of Defendant's allegations lack specifics, but he does contend that "[t]he biggest outrageous prosecutorial and governmental misconduct took place during trial" with respect to government witness Jessica Kazukiewicz. (Dkt. 923 at 9-12). However, Judge Arcara held an evidentiary hearing in the middle of the trial to address Defendant's claims and Defendant's allegations were found without merit. (Dkt. 837). Judge Arcara has similarly rejected other claims by Defendant of prosecutorial misconduct. (See, e.g., Dkt. 752 (Decision and Order denying Defendant's motion to dismiss based upon alleged due process violation in connection with incident at jail on December 21, 2021); Dkt. 778 (Decision and Order denying motion for reconsideration of request for grand jury material and rejecting various claims of prosecutorial misconduct)). To the extent Defendant is attempting to relitigate those issues with his pending bail motion, his arguments are rejected.
Notwithstanding the deadlocked jury in the retrial, it remains the case that there are three witnesses who will testify that Defendant murdered Quincy Balance and attempted to murder Damon Hunter. Both Judge Arcara—who has presided during two trials of Defendant—and the Second Circuit have characterized the evidence of Defendant's personal involvement in the murder and attempted murder as "overwhelming." United States v. Arrington, 941 F.3d 24, 38 n.4 (2d Cir. 2019). (See also Dkt. 737 at 7-8 (Judge Arcara's Decision and Order denying Defendant bail based, in part, on the strength of the evidence)). On the other hand, inevitable questions are raised as to the government's ability to ultimately obtain a conviction, particularly when one considers the deadlocked jury during the retrial and the Second Circuit's recognition that the connection between the murder and Defendant's role as an enforcer for the Schuele Boys was a "close call". Arrington, 941 F.3d at 38. But predicting the outcome of any retrial is not the Court's role on this motion. Defendant is presumed innocent. However, there is strong evidence that he committed a murder and attempted murder and, if convicted, he faces a lifetime in prison. This weighs heavily in favor of finding that Defendant presents both a risk of flight and danger if released and, therefore, he should remain detained.
The government contends that additional evidence was introduced at the retrial of Defendant's involvement in the drug trafficking activities of the Schuele Boys; however, the fact remains that the jury was not able to reach a unanimous verdict during the retrial, and the evidence of the link between the murder and Defendant's alleged racketeering activity during the first trial (where a conviction was obtained) while sufficient, was not characterized by the Second Circuit as strong.
C. The history and characteristics of Defendant favor detention.
Defendant is 41 years old. (Dkt. 311 at 2). Defendant states that he is the father of five children and contends that prior to his incarceration, he was actively involved in their lives. (Dkt. 923 at 27). He is a lifelong resident of Buffalo, New York, aside from a period of approximately three years when he resided in Ohio. (Dkt. 311 at ¶ 94). According to the government, Defendant "fled" to Ohio to avoid testifying at the trial of Archie Price to whom Defendant provided a firearm that was used to kill two people in the Schuele territory. (Dkt. 935 at 14).
Defendant contends that he is "a GOD fearing man who loves his family". (Dkt. 923 at 4). However, Defendant's criminal history is significant with repeated violations of probation or pretrial supervision. According to the presentence investigation report prepared in connection with Defendant's initial conviction after the first jury trial, his criminal history resulted in a total criminal history score of 10 and a criminal history category of V. (Dkt. 311 at ¶ 66).
In March 1999, when Defendant was 17 years old, he was sentenced to five years probation for a felony conviction in Erie County Court pursuant to a guilty plea to attempted criminal possession of a loaded firearm in the third degree. (Id. at ¶ 55). Defendant contends that he was "forced to exercise [his] Second Amendment rights" because of threats that he and his family faced at the time and the lack of police protection. (Dkt. 923 at 28-29). A little over a year after the sentence was imposed for this crime, Defendant was found to have violated the conditions of probation and he was sentenced to one year in prison. (Dkt. 311 at 55).
In July 2001, at the age of 19, Defendant was convicted after a bench trial in Buffalo City Court of Driving While Ability Impaired by the Consumption of Alcohol and another traffic infraction. (Id. at ¶ 56). He received a one-year conditional discharge. (Id.). Later that same year, in September 2001, Defendant pleaded guilty in Buffalo City Court to two counts of disorderly conduct (violations) and facilitating aggravated unlicensed operation of a motor vehicle in the third degree (an infraction), for which he received a conditional discharge. (Id. at ¶ 57). In connection with that latter conviction, a bench warrant was issued on November 20, 2001, and Defendant was resentenced to five days imprisonment. (Id.).
From 2001 until 2004 Defendant resided in Ohio (id. at ¶ 94), during which time Defendant continued with his criminal behavior. In November 2002, Defendant was convicted in Ohio State Court of a misdemeanor charge of driving without a valid license, for which he was fined. (Id. at ¶ 59). Then, in January 2003, Defendant pled guilty in Ohio State Court to a misdemeanor charge of driving without a valid license and several related misdemeanor charges, for which he was sentenced to 30 days imprisonment (suspended) and one year probation. (Id. at ¶ 60).
On October 13, 2002, Defendant was again arrested in Ohio. (Id. at ¶ 58). According to the presentence investigation report, Defendant was indicted for possession of crack cocaine related to this arrest, on July 29, 2003. (Id. at ¶ 61). Defendant was released on a recognizance bond on August 11, 2003, and then failed to appear for trial on November 6, 2003, resulting in a warrant being issued. (Id.). Defendant was subsequently arrested on February 6, 2004, and charged with failing to appear, a fourth degree felony. (Id.). On April 14, 2004, Defendant pleaded guilty to attempted failure to appear, a first degree misdemeanor. (Id.). On that same date, he also pleaded guilty to possession of crack cocaine, a fourth degree felony, related to the October 13, 2002 arrest. (Id. at ¶ 58). On June 1, 2004, Defendant was sentenced to three years probation for the drug crime (id.), and a suspended prison sentence of six months with three years probation for the failure to appear crime (id. at ¶ 61). Defendant contends that he left Ohio while the drug charges were pending because he was "homeless" and he was moving back to Buffalo. (Dkt. 923 at 29-30). The presentence investigation report states that Defendant absconded from those probation sentences and there is an outstanding warrant in Ohio for his arrest. (Dkt. 311 at ¶¶ 58, 61). However, Defendant disputes this and further investigation by the USPO has confirmed that the warrant is not currently outstanding.
Defendant returned to Buffalo in 2004 (id. at ¶ 94), and on September 20, 2006, Defendant pleaded guilty in Erie County Court to a felony charge of attempted criminal possession of a weapon in the second degree, for which he received a five year prison sentence followed by three years post-release supervision (id. at ¶ 63). The underlying events related to that conviction involved Defendant allegedly aiming a handgun and firing several shots at another individual. (Id.). Defendant contends that the incident related to the assault of his ex-wife by the father of her daughter, although Defendant concedes that he "went looking for him trying to scare him to leave us alone, and I shot at him . . . ." (Dkt. 923 at 30). Defendant contends that he and the victim of this incident are "best friends now." (Id.). Defendant was paroled on March 18, 2011, but then his parole was revoked on February 11, 2013. (Dkt. 311 at ¶ 63). At the time of the murder on August 30, 2012, Defendant was serving on parole.
The presentence investigation report also documents heavy use of marijuana by Defendant from the age of 11 until his arrest in 2014, as well as the abuse of prescription medication. (Id. at ¶ 102). Defendant also has a history of alcohol abuse. (Id. at ¶ 104). Defendant's employment history as a laborer is undocumented. (Id. at ¶ 108).
The government contends that Defendant admitted to another individual (Henry Lloyd) to murdering Quincy Balance and attempting to murder Damon Hunter, and also to murdering another individual named "Josh" which occurred in May 2014. (See Dkt. 935 at 13). The government also contends that Defendant has attempted to interfere with the judicial process by soliciting false testimony and that he has a history of lying. (Id. at 17-19).
While Defendant's family ties and connections to the community have been considered by the Court, consideration of Defendant's other history and characteristics—including his criminal history and drug and alcohol abuse—counsel strongly in favor of detention. Defendant has a significant and lengthy history of violence—even admitting that on at least two occasions he has engaged in violent and threatening conduct with a firearm in an effort to exercise his "Second Amendment rights." He has repeatedly been involved in documented criminal conduct since the age of 17, and his record reflects repeated violations of probation, parole or pretrial release. Indeed, by his own admission, he left Ohio while criminal charges were pending and ultimately pleaded guilty to failing to appear in that state, and according to the government he similarly fled New York for Ohio when he was facing the prospect of having to testify in connection with a criminal matter where individuals were killed with a firearm Defendant supplied.
D. The nature and seriousness of the danger to any person or the community posed by Defendant's release favors detention.
Consideration of the final factor also favors detention, for largely the same reasons that have been discussed above for the first three factors under § 3142(g).
In sum, Defendant has failed to come forward with evidence to rebut the presumption in favor of detention, and in addition, through consideration of each of the § 3142(g) factors, the government has established by a preponderance of the evidence that Defendant's release would present a risk of flight and by clear and convincing evidence that it would present a risk of danger. In addition, the conditions proposed by Defendant would not adequately protect against those risks, nor would any other reasonable condition. Put simply, Defendant has a significant incentive to flee and he has a history of violating court orders and fleeing jurisdictions to avoid criminal matters. Likewise, Defendant has a lengthy criminal history with disturbing incidents of violence. While Defendant disputes that his release would pose a risk, his documented record demonstrates otherwise. Thus, the Court concludes that no set of conditions could protect against the very legitimate and significant risks of flight and danger posed by Defendant's release. IV. DEFENDANT'S DETENTION DOES NOT VIOLATE DUE PROCESS.
"Pretrial detention satisfies due process only if its purpose is regulatory rather than punitive." United States v. Briggs, 697 F.3d 98, 101 (2d Cir. 2012), as amended (Oct. 9, 2012). Preventing danger to the community and ensuring a defendant's presence at trial are included among "[p]ermissible regulatory purpose." Id. (quoting United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) and Bell v. Wolfish, 441 U.S. 520, 536, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). There is no bright-line limit for the length of pretrial confinement, and each case must be evaluated on its own. Id. In making that assessment, the Second Circuit requires a district court to weigh three factors: "(i) the length of detention; (ii) the extent of the prosecution's responsibility for the delay of the trial; and (iii) the strength of the evidence upon which the detention was based, that is, the evidence concerning risk of flight and danger to the safety of any other person or the community." United States v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993) (citations omitted).
The Court acknowledges that the length of Defendant's pretrial detention is significant. However, "[w]hile the length of pretrial detention is a factor in determining whether due process has been violated, the length of detention alone is not dispositive and 'will rarely by itself offend due process.' " United States v. El-Hage, 213 F.3d 74, 79 (2d Cir. 2000). As of today, it has been almost 40 months since the Second Circuit issued its mandate and remanded the case for a new trial. A date for Defendant's third trial has now been set for May 22, 2023—at which point it will be approximately three-and-one-half years—or 42 months—since issuance of the mandate. At this time Defendant's appeal of the Court's denial of his motion to dismiss on double jeopardy grounds remains pending, and the Court is presently divested of jurisdiction to retry the case.
Defendant relies, in part, on the length of time since his arrest in October 2014, in support of his due process argument. (See Dkt. 923 at ¶ 53). As noted by Judge Arcara in his decision denying Defendant's request for bail, Defendant has not been in pretrial custody since that time because for approximately two years he was in post-trial custody within the Bureau of Prisons after his initial conviction. (See Dkt. 737 at 12). Similarly, Defendant served in post-conviction custody for three months after the jury at his first trial rendered its verdict on September 25, 2017, and prior to his sentencing on December 20, 2017. The parties have not cited the Court to a case involving a similar set of factual circumstances, nor has the Court's own research uncovered such a case—where a defendant was in pretrial custody, convicted at a first trial and sentenced, and had the conviction vacated and remanded for a retrial that resulted in a mistrial. Nonetheless, the Court has also considered Defendant's initial approximate three-year pretrial detention, in assessing his due process arguments, but still concludes that under the unique set of circumstances of this case, Defendant's due process rights have not been violated.
While the length of Defendant's pretrial custody is significant and the Court is not without concerns about its duration, the reality is that much of the reason for the delay is attributable to Defendant who, as Judge Arcara described, "engaged in voluminous motion practice that required the Court to decide these issues before a new trial could be scheduled." (Dkt. 737 at 12). Similarly, Defendant has repeatedly encountered issues with his assigned counsel, and he ultimately elected to proceed pro se (with his current standby counsel representing the fourth attorney assigned since issuance of the mandate). Also, as noted by Judge Arcara, the mandate was issued only a few months before the onset of the COVID-19 pandemic, which created additional complications in moving the case to retrial. (Dkt. 737 at 12 n.5).
An example of the delay caused by Defendant's own tactics is represented by his motion to dismiss on double jeopardy grounds filed after Judge Arcara declared a mistrial on October 18, 2022. The case was promptly set for retrial in mid-December 2022, but Defendant elected to pursue a motion to dismiss on double jeopardy grounds and consistently represented that he would pursue an interlocutory appeal if the motion was denied. Then, while the motion was pending and after the government submitted its memorandum in opposition, Defendant sought an indefinite delay in the briefing of the motion so that he could obtain voluminous trial transcripts that he contended he wanted to reference in his reply memorandum. (Dkt. 915). The Court denied that request (Dkt. 919), but had it been granted the motion to dismiss would likely still not be fully briefed or decided (since some of the transcripts were just filed earlier this month (see Dkt. 970; Dkt. 971; Dkt. 972; Dkt. 973; Dkt. 974; Dkt. 975)). After the Court rendered its decision on the motion to dismiss, as promised Defendant filed a notice of appeal and, again, consistently represented his intention to pursue that appeal before any retrial could go forward. Then, on February 21, 2023, Defendant abruptly changed course and stated for the first time his intention not to pursue the appeal. (Dkt. 961). The Court promptly scheduled an appearance on March 2, 2023, at which time Defendant conceded that he believed the Second Circuit would conclude his appeal was frivolous. At the writing of this Decision and Order, the appeal remains pending and the Court is presently divested of jurisdiction to retry the case. Nonetheless, a retrial has been scheduled to commence on May 22, 2023—assuming the appeal is, indeed, dismissed by Defendant.
In other words, if Defendant had not pursued an appeal of the denial of his motion to dismiss on double jeopardy grounds—which Defendant now acknowledges is likely to be deemed frivolous by the Second Circuit—the third trial would have already been commenced and likely completed by now.
Notwithstanding the significant evidence of Defendant's responsibility for much of the delay in this case, he contends that the government is responsible, but this simply does not correspond to the record in the case. While some of the delay is attributable to more neutral reasons or not solely the responsibility of Defendant, there is no evidence that the government has intentionally sought to delay this case. Judge Arcara discussed responsibility for the delay in his Decision and Order entered on June 1, 2022, denying Defendant's motion for dismissal on speedy trial grounds (Dkt. 724), and the Court relies on those findings in this Decision and Order.
Furthermore, for the reasons outlined above, the evidence regarding Defendant's risk of flight and danger are strong. As noted above, Defendant has significant incentive to flee, and he has a history of violating court orders and fleeing jurisdictions to avoid criminal matters. Likewise, Defendant has a lengthy criminal history with disturbing incidents of violence, and the evidence of his murder and attempted murder related to this case is strong.
In sum, while it is not an insignificant period of time and the Court acknowledges that it is concerned about the length of Defendant's pretrial detention, the case presents a unique set of circumstances where pretrial detention even of the length at issue here does not run afoul of Defendant's due process rights. See United States v. Rounds, 619 F. App'x 40, 41 (2d Cir. 2015) (pretrial detention lasting over five years, while "troubling," did not violate due process, where trial was scheduled to start 14 days after the defendant's appeal was submitted for consideration, reason for delay was largely the fault of the defendant, and the defendant was accused of crimes carrying a maximum penalty of life in prison); El-Hage, 213 F.3d at 81 (30-33 month detention which was "realistically projected to continue for a very long time" did not violate due process, where the defendant allegedly had a role in a worldwide terrorist organization and was dangerous to the United States, because "longer pretrial detention is more justifiable for a defendant found to be dangerous than for a defendant who presents only a risk of flight").
V. DEFENDANT'S MOTION FOR TEMPORARY RELEASE
As noted above, Defendant also seeks temporary release from custody due to his father's recent passing. (Dkt. 981; see also Dkt. 986). The government opposes the motion (Dkt. 983) as does the USPO (Dkt. 985).
The Bail Reform Act allows for a temporary release as follows:
The judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason.18 U.S.C. § 3142(i). "This provision has been used sparingly to permit a defendant's release where, for example, he is suffering from a terminal illness or serious injuries." United States v. Hamilton, No. 19-CR-54-01 (NGG), 612 F.Supp.3d 112, 115 (E.D.N.Y. Mar. 20, 2020). During the oral argument on March 13, 2023, Defendant explained that he was requesting to be released from custody for 72 hours to not only pay his last respects to his father, but also to assist his stepmother with various tasks related to his father's passing. Defendant was not interested in the Court's offer to explore release into the custody of the United States Marshals Service ("USMS"), stating that he cannot afford the associated financial costs. The government opposes the motion, contending that even release into USMS custody presents grave risks. (See Dkt. 983 at 7).
This is a sad situation. But given the significant risks of danger and flight outlined above, the Court cannot grant Defendant's request. Accordingly, Defendant's motion for temporary release is denied.
CONCLUSION
For the foregoing reasons, Defendant's motion for bail (Dkt. 923) and motion for temporary release from custody (Dkt. 981) are denied.
SO ORDERED.