At a stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Courthouse, in the City of New York, on the twelfth day of January one thousand nine hundred and eighty-eight.
A petition for rehearing containing a suggestion that the action be reheard in banc having been filed herein by counsel for the defendant-appellant Juan Enrique Segarra Palmer,
Upon consideration by the panel that heard the appeal, it is
Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing in banc having been transmitted to the judges of the Court in regular active service and to any other judge that heard the appeal and a poll of said judges having been taken, a majority of the Court has voted not to reconsider the decision in banc. Judge Newman dissents from the denial of the rehearing in banc in a separate opinion, in which Judges Oakes and Kearse concur.
JON O. NEWMAN, Circuit Judge, with whom OAKES and KEARSE, Circuit Judges, concur, dissenting from denial of rehearing in banc:
The appellants' suggestion for a rehearing in banc alleges a significant conflict between the panel's opinion upholding the preventive detention of Ojeda Rios and Segarra Palmer, United States v. Melendez-Carrion (Ojeda Rios), 820 F.2d 56 (2d Cir. 1987) (hereinafter "Ojeda Rios"), and a prior panel's opinion in United States v. Gonzales Claudio, 806 F.2d 334 (2d Cir. 1986), which held that the duration of pretrial detention of two co-defendants of Ojeda Rios and Segarra Palmer exceeded constitutional limits. I respectfully dissent from the denial of rehearing in banc because "consideration by the full court is necessary to secure or maintain uniformity of its decisions," Fed. R. App. P. 35(a)(1), and because the divergence between the opinions of the two panels in assessing governmental responsibility for pretrial delay creates needless uncertainty on the important issue of when the duration of preventive detention has exceeded constitutional limits.
In Gonzales Claudio, we ruled that whether the duration of pretrial detention because of a risk of flight exceeds constitutional limits depends on a composite assessment of at least three factors: the length of the detention, the extent to which the prosecution bears responsibility for the delay of the trial, and the strength of the evidence indicating a risk of flight. 806 F.2d at 340. As to the two defendants challenging their detention on that appeal, we held that constitutional limits had been exceeded by detention lasting fourteen months and remanded for the setting of reasonable conditions of release. With respect to the second of the three pertinent factors, we concluded that "the Government, even if not deserving of blame, bears a responsibility for a portion of the delay significant enough to add considerable weighs to the defendants' claim that the duration of detention has exceeded constitutional limits."*fn1 806 F.2d at 342-43. That conclusion was based on four facts that we understood were undisputed:
(a) the prosecution did not complete the task of translating wiretaps until nine months after detention began;
(b) the prosecution did not complete the task of translating seized documents until one year after detention began;
(c) the prosecution did not disclose the existence of videotapes of the defendants until ten months after detention began;
(d) the prosecution had not completed compliance with Fed. R. Crim, P. 16 discovery requests as of fourteen months after detention began.
After the remand in Gonzales Claudio, seven codefendants loved for release from pretrial detention. Judge Clarie granted the motion with respect to five co-defendants, but denied the motions of Ojeda Rios and Segarra Palmer.*fn2 In making the latter rulings, Judge Clarie accepted as "the rule of the case" the Court of Appeals' conclusion in Gonzales Claudio concerning the prosecution's responsibility "'for a portion of the delay significant enough to add considerable weight'" to the constitutional claim. United States v. Gerena, Crim. No. H-85-50, slip op. at 10 (D. Conn. Dec. 22, 1986) (quoting Gonzales Claudio, 806 F.2d at 342). Judge Clarie concluded that the prosecution's responsibility for delay and the length of detention were outweighed by the strength of the evidence indicating risk of flight.
The panel opinion affirming Judge Clarie's decision proceeds somewhat differently. It maintains that Judge Clarie "made extensive findings of fact that, in effect, largely absolved the prosecution from responsibility for the delay in bringing appellants to trial." Ojeda Rios, supra, 820 F.2d at 60. "Assisted by the additional findings supplied by the district court," the panel "determined that the prosecution is not responsible for a significant portion of the delay in bringing appellants to trial, and we therefore conclude that this factor weighs in favor of a finding that appellants' due process rights are not violated by their continued pretrial detention." Id. Ultimately the panel affirmed, relying on both the absence of prosecution responsibility for trial delay and the strength of the evidence concerning risk of flight. Id. at 61-62. These factors were deemed to outweigh the significance of the duration of pretrial confinement, which was nineteen months as of the date the Ojeda Rios appeal was argued and now exceeds twenty-eight months.
Though Judge Clarie did not purport to disturb the conclusion of the Gonzales Claudio panel that the prosecution bore responsibility for a significant portion of the pretrial delay, he did observe that "the record on which the second circuit relied for its determination as to the government's fault for the delay was both factually imprecise and incomplete." Slip Op. at 9. In support of this statement, he added a note identifying four disagreements with what had been said in Gonzales Claudio. It is the contents of this note on which the Ojeda Rios panel relies in reaching its conclusion that the prosecution is not responsible for a significant portion of the pretrial delay. Before examining the content of that note in detail, I observe that it makes a slight alteration in bust one of the four facts that were set forth in Gonzales Claudio as providing an undisputed basis for concluding that the prosecution was responsible for a significant portion of the pretrial delay. Gonzales Claudio had stated that the prosecution took one year to complete the task of translating seized documents. Judge Clarie's note says that the task was completed in ten months. Nothing in Judge Clarie's note ...