Opinion
No. 06-5750-cr.
February 21, 2007.
Appeal from an order of the United States District Court for the Western District of New York (Hon. William M. Skretny, Judge).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED and DECREED that the judgment of the district court be, and it hereby is, AFFIRMED, that defendant's appeal be construed in the alternative as a petition for mandamus, and that the petition be, and it hereby is, DENIED without prejudice to its reinstitution in this Court under the conditions set forth below.
Marianne Mariano, Federal Public Defender, Buffalo, NY, for Appellant.
Joseph J. Karaszewski, Assistant United States Attorney (Terrence P. Flynn, United States Attorney for the Western District of New York, of counsel), Buffalo, NY, for Appellee.
PRESENT: Hon. THOMAS J. MESKILL, Hon. JON 0. NEWMAN, Hon. ROBERT D. SACK, Circuit Judges.
SUMMARY ORDER
The defendant appeals from the district court's order revoking bail pending trial. We assume the parties' familiarity with the relevant facts and procedural history.
A district court may order pretrial detention where it finds by clear and convincing evidence that "no condition or combination of conditions will reasonably assure . . . the safety of any other person and the community. . . ." 18 U.S.C. § 3142(e); see id. § 3142(f). We review a district court's bail determination for clear error. United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995).
Upon review of the facts and circumstances of this case, we cannot say that the district court's decision to grant the government's motion to revoke bail is clearly erroneous. Nevertheless, in light of the length of time the defendant has been in federal custody, the likely period of incarceration he faces if convicted, and the repeated exclusions of time under the Speedy Trial Act that have occurred as a result of the magistrate judge's delay in deciding a motion to exclude evidence, we construe Mikula's appeal, in the alternative, as a petition for mandamus. See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005). Having done so, we deny the petition because we conclude that petitioner's right to relief is not at this time "clear and indisputable." Id. We do so, however, with the proviso that if (1) the motion to suppress which we are told is now pending before the magistrate judge is not decided by him within 30 days hereafter, or (2) there is substantial other delay in resolving this prosecution, the petition may be reinstituted in this Court. In the event it is so reinstituted, it shall be referred to this panel.
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED, and defendant's petition for mandamus is hereby DENIED without prejudice under the terms set forth above.