complete and the extent of corruption known, neither Millan nor his codefendants can be retried. Accordingly, Millan's failure to retain new counsel is largely irrelevant.
Third, despite the Government's representation that it is not significantly responsible for the mistrial, see Snell Letter at 8, the Court finds that the Government is primarily, if not solely, responsible for the trial's delay since March 1993. As noted in the Court's prior opinions, dated March 29 and April 16, 1993, the Government's failure to notify the Court regarding Pollack's conflict or bring the allegations of police misconduct to the Court's attention before opening arguments resulted in Millan's severance and the subsequent mistrial. See Order, dated April 16, 1993, at 5; see also Order, dated March 29, 1993, at 29 ("the Government has acted inexcusably in disrupting and delaying the Millan trial."); Order, dated May 21, 1993, at 3-4 (Government found responsible for causing mistrial and delaying retrial). Thus, as the Government is clearly responsible for a portion of the pretrial delay, this factor also weighs in favor of ordering Millan's conditional release.
C. The Strength of the Evidence Upon which Detention was Based
Turning to the third factor, the Court must assess whether Millan constitutes either (1) a risk of flight or (2) a danger to the safety of other persons and the community and (3) whether there are "conditions of release that will reasonably assure the appearance of [Millan] as required and the safety of any other person and the community." United States v. Orena, 986 F.2d at 632 (quoting 18 U.S.C. § 3142(g)). In deciding this issue, the Court will consider the nature and circumstances of the alleged offense, the weight of the evidence against the accused, the history and characteristics of that person, the risk of flight and the danger to any person or the community that would be posed by the defendant's release. Id.; see also United States v. Khashoggi, 717 F. Supp. 1048, 1049 (S.D.N.Y. 1989). If the Court concludes by clear and convincing evidence that "no condition or combination of conditions will reasonably assure . . . the safety of any other person and the community," detention shall be ordered. Id.
1. Risk of Flight
The Government points to four factors evidencing Millan's risk of flight: (1) Millan attempted to flee when he was first apprehended by law enforcement officers; (2) Millan has strong incentive to flee as he is facing mandatory life imprisonment if convicted of conducting a continuing criminal enterprise; (3) Millan has a passport and has travelled extensively in South America; and (4) Millan has substantial wealth stashed in South America.
The Court agrees with the Government's contention that the proffered evidence establishes that Millan accumulated substantial wealth as a result of his many years in the heroin business. Specifically, a search warrant executed on August 3, 1991, yielded among other things, records documenting over $ 91 million worth of heroin distributed by the Blue Thunder organization between June 1987 and August 1991. The same records indicate that the organization received a total of more than $ 65 million in cash from the sale of heroin during the same forty month period. In addition, at a hearing held before the Court on June 7, 1993, Heriberto Rosario, Millan's confidante, testified that Millan received 35% of Blue Thunder's gross heroin sales, and that, according to Millan himself, had money in Argentina and other hiding places not accessible to him from jail. Transcript of Bail Appeal, dated June 3 and 7, 1993 (the "Appeal Tr."), at 136-39.
Despite this evidence, however, the Court finds that Millan has no history of attempting to avoid apprehension by law enforcement officials and that there are countervailing factors decreasing the risk of flight. First, Millan's ties to the community, "the starting point for assessing risk of flight", are strong. See United States v. Gonzales-Claudio, 806 F.2d at 343. Millan is a United States citizen who was born in New York and has lived his entire life in New York City. See Pretrial Services Report, dated June 3, 1993, at 2. In addition, all Millan's close relatives, including his common-law wife, three children, mother, sister, grandmother, aunts and uncles, live in New York. Id. Millan has no additional family or close relatives outside the United States. Id. Millan also owned several companies and properties in the New York area, many of which were seized by the Government. Id. Thus, Millan has substantial ties to this area.
In addition, despite Millan's frequent visits to South America, he has never engaged in activity evidencing a likelihood of flight. For instance, there is no finding and no evidence that Millan ever fled the jurisdiction, failed to honor court orders, or used false identities, aliases, or travel documents.
Furthermore, the Government has now seized Millan's passport, making further travel abroad difficult, if not impossible.
Moreover, the factors relied upon by the Government, namely, Millan's substantial wealth, trips to South America, and alleged criminal conduct, are not as compelling as those in United States v. Ojeda Rios, 846 F.2d 167 (2d Cir. 1988), in which the Second Circuit ordered the defendant's conditional release. In that case, although defendant Ojeda Rios posed a clear risk of flight in that he: (1) was head of military operations for "Los Macheteros" (the machete wielders), a paramilitary terrorist group dedicated to achieving the independence of Puerto Rico and responsible for numerous acts of murder, robbery, destruction of property, theft of explosives and kidnapping;
(2) was known by various code names and aliases; (3) had obtained fake drivers' licenses and passports; (4) had traveled extensively in Puerto Rico and other foreign countries; (5) forcibly resisted arrest by wounding an arresting officer; and (6) lived "underground" without ties to the community, see United States v. Melendez-Carrion, 820 F.2d at 57-58, 61, the Second Circuit held that his risk of flight did not outweigh a period of confinement, namely thirty-two months, which had exceeded constitutionally permissible limits.
Similarly, in United States v. Gonzales-Claudio, 806 F.2d at 341, the Second Circuit found that detention which lasted fourteen months and, without speculation, was scheduled to last considerably longer, was a denial of due process. In that case, the court held that even though the defendants lived all their lives in Puerto Rico, had code names in the Los Macheteros organization, participated in paramilitary operations, including a raid in which two United States sailors were killed, and used false names, their risk of flight was not established "to a degree sufficient to render continued detention within constitutional limits." Id. at 343. In reaching its decision, the Second Circuit recognized that:
the release of these defendants upon reasonable conditions creates a risk that they may flee. We are not indifferent to that prospect. But the enforcement of all constitutional restraints upon government in its efforts to administer the criminal law entails risks. . . . In this case the enforcement of due process limits upon the duration of preventive detention creates the risk that a person accused of crime may avoid a trial that might result in conviction and punishment. That risk is serious, but of at least equal gravity is the preventive detention for fourteen months of defendants who are presumed innocent and whose trial to determine guilt or innocence will not even begin until detention has lasted eighteen months.
Likewise, in the instant matter, the Court recognizes the very real potential that Millan will flee. Clearly, the serious nature of the crimes charged, the central role Millan allegedly played in heading the organization responsible for those crimes, his obvious incentive to flee in light of a potential life sentence, and the extent and weight of the evidence indicating his culpability, all point towards a serious risk of flight in the case at hand. Nonetheless, the Court also recognizes that the Due Process Clause requires that at some point risk of flight must be accepted in order to avoid a deprivation of constitutional rights. That point has been reached. Thus, although Millan may attempt to flee rather than attend his trial, this risk is not sufficient to render continued detention within constitutional limits.
2. Danger to the Community
The Second Circuit has observed that "the constitutional limits on a detention period based on dangerousness to the community may be looser than the limits on a detention period based solely on risk of flight," as release of a dangerous individual risks potential injury to others whereas release with a flight risk potential entails "only the loss of a conviction." United States v. Orena, 986 F.2d at 631. The Second Circuit has also determined, however, that danger to the community must be supported by "clear and convincing evidence."
United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985). "To find danger to the community under this standard of proof requires that the evidence support such a conclusion with a high degree of certainty." Id.
Focusing on Millan's danger to the community, the Government contends that the evidence concerning Millan's dangerousness is "compelling." Snell Letter at 11. Specifically, the Government relies on the testimony of two witnesses, Klepper Duche and Heriberto Rosario, both of whom participated in the Blue Thunder distribution business. On June 3, 1993, Duche testified that Millan and Nelson Rodriguez ("Rodriguez") were partners in the heroin business. Duche also testified that Millan tried to arrange bail for Rodriguez in connection with an arrest for murder. Appeal Tr. at 46-48. Duche further testified that following his own release from prison in 1989, Millan recruited him to return to the heroin business. Id. at 51-56. Thereafter, Millan approached Duche about a "problem" which Millan wished to solve by hiring a "trigger man" to "take somebody out." Id. at 57. Following their arrest in August 1991, in connection with the Blue Thunder case, Millan commented to Duche that "people that I think, you know, are cooperating, they're not really thinking good, they're not really thinking about their families." Id. at 67.
On June 7, 1993, Rosario provided testimony that in 1989, he assisted Millan and others in an "enforcement action" at a "spot" on Gerard Avenue, an action that culminated with Rosario shooting at a rival drug dealer. Id. at 120-22. Rosario also testified that he and Millan agreed to place a $ 100,000 contract on a rival drug dealer who had declared "a personal war on Blue Thunder." Id. at 123-25. Rosario further testified as to a post-arrest conversation with an associate of Millan's about resuming the distribution of Blue Thunder heroin. Id. at 140. Rosario also recalled a post-arrest conversation in which Millan indicated "that he wanted to go to trial because he wanted to see who testifies against him," and remarked "that whoever testifies, that they are putting their family in danger." Id. at 138, 154.
In spite of this testimony, the Court finds no evidence that Millan presents a danger to any specific individual. See S. Rep. at 12-13, 1984 U.S. Code Cong. & Adm. News, 3195 (noting that dangerousness to any person "is intended to cover the situation in which the safety of a particular identifiable individual, perhaps a victim or witness, is of concern"). Moreover, Millan has no prior convictions involving violent offenses. Indeed, despite testimony that Millan threatened the families of cooperating witnesses, both Duche and Rosario frankly admit that Millan has never threatened or intimidated either them or their families. Appeal Tr. at 74-76, 78, 154; see United States v. Gallo, 653 F. Supp. at 332-33 (any detention based on a threat to a witness must take into account the likelihood that threat will be carried out). In addition, although both Duche and Rosario testified as to numerous acts of violence with which they were associated, (see Appeal Tr. at 34-36 (shooting), 37-39 (shootout), 40-42 (beating and shooting), 43-44 (beating), 61-62 (shooting), 119 (shooting), 122 (shooting), 127-28 (contract for murder)), both witnesses had difficulty attributing any specific acts of violence directly to Millan. See Appeal Tr. at 173 (noting that Millan "gets others to do his dirty work for him very often.").
Therefore, the principle concern raised by the Government is not the prospect that Millan will cause direct harm to any individual, but rather, that he will return to criminal activity to the detriment of the community. See United States v. Leon, 766 F.2d 77, 81 (2d Cir. 1985) ("it is clear that the harm to society caused by narcotics trafficking is encompassed within Congress' definition of 'danger'"). Thus, the precise question raised, is whether the Government has shown by clear and convincing evidence that Millan represents a danger to the community by virtue of the risk that he will resume his criminal activities in narcotics trafficking.
In answering this question, the Court, while cognizant that there is convincing evidence that Millan previously engaged in a continuing criminal enterprise in violation of 21 U.S.C. § 848, rejects the notion that this evidence, by itself, supports the inference that Millan will return to his criminal activities and should be detained. While such evidence establishes probable cause to believe that Millan committed the crimes charged, it does not establish a risk of recidivism sufficient to order Millan's further detention. The Court also notes that the offenses charged are Millan's first and that his alleged misconduct occurred over two years ago.
On the other hand, the Court does find that the charges in the indictment are serious and that the Government has produced evidence at the hearings to demonstrate clearly and convincingly that Millan associated with dangerous, violent people who are likely to repeat their criminal conduct. Specifically, the Court takes notes that both Duche and Rosario, though arrested, engaged in additional criminal conduct following their arrests. For example, subsequent to his incarceration in this case, Rosario has been prosecuted for accepting contraband. Appeal Tr. at 143-45. Similarly, following his March 1987 arrest for drug trafficking, Duche resumed his heroin business with Millan. Appeal Tr. at 52-54.
Nonetheless, the Court believes that continued detention, beyond twenty-three months, of a person presumed to be innocent is fundamentally unfair and violates due process. At this point in time, Millan's individual due process rights outweigh his potential risk of flight and dangerousness. Thus, given the length of detention that has already occurred and the non-speculative estimate of future confinement, the Government's responsibility in delaying this trial, and the facts concerning risk of flight and danger to the community, the Court finds that continued detention beyond twenty-three months exceeds due process. Accordingly, the Court imposes a set of conditions for release which will reasonably assure the safety of the community, as well as Millan's future appearance at trial.
For the reasons set forth above, the Court deems it appropriate that Millan shall be released from pretrial confinement subject to the following bail conditions: Millan shall (1) post a $ 1,000,000.00 personal recognizance bond secured by $ 500,000.00 in real property and $ 100,000.00 cash and the signatures of six (6) financially responsible individuals, two of whom must be family members; (2) not associate, engage in business with, or communicate with any other named defendants prior to trial except in the presence of his lawyer to prepare his defense; (3) not commit any crimes during the period of his release; (4) report daily by telephone to Pretrial Services: (5) report personally on one day of each week to Pretrial Services; (6) reside with his common-law wife and submit to home detention and electronic monitoring, with limited exceptions for prearranged visits with his attorney for the purpose of assisting in the preparation of his defense; and (7) surrender his passport and all other travel documents, including the passport and travel documents of his common-law wife, and shall not apply for any other travel documents during the pendency of this case.
Pursuant to 18 U.S.C. § 3142(h)(2), the Court further advises Millan that violation of one or more of these conditions of release will result in the immediate issuance of a warrant for his arrest. If Millan fails to appear before any court or judicial officer as required, his bond will be forfeited and an additional criminal charge, bail jumping, may be instituted against him.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
DATED: New York, New York
June 23, 1993