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June 23, 1993

ERIC MILLAN, et al., Defendants.

The opinion of the court was delivered by: SHIRLEY WOHL KRAM


 Defendant Eric Millan ("Millan") was arrested on August 1, 1991, and thereafter charged with participating in a heroin distribution conspiracy, known as "Blue Thunder." At all times subsequent to his arrest, Millan has been detained. On May 20, 1993, Millan moved for his conditional release pending retrial *fn1" on the ground that his pretrial detention for a total of more than twenty-three months violates due process. On May 28, 1993, following a two day hearing, Magistrate Judge Theodore H. Katz orally granted Millan's application and ordered his conditional release on the basis of the length of pretrial detention. *fn2" See Transcript of Hearing before the Honorable Theodore H. Katz, dated May 28, 1993 ("Hearing Tr."), at 35-51.

 The Government now appeals the Magistrate Judge's ruling on the grounds that Millan's continued detention is necessary as he constitutes both a risk of flight and a danger to the community. In support of its position, the Government relies on the testimony of two witnesses, Klepper Duche, a/k/a "Pedro Gonzales" ("Duche") and Heriberto Rosario ("Rosario"), both of whom participated in Millan's alleged heroin distribution business. Specifically, at a hearing on June 3 and 7, 1993, conducted by the Court pursuant to 18 U.S.C. § 3142 (f)(1)(B), both Duche and Rosario described Millan's advancement in the heroin distribution business, the acts of violence committed by others to protect that business, and Millan's extensive cocaine use. In addition, the Government relies upon a videotape introduced at the hearing in which Millan is apparently engaged in the operation of a money counting machine. Further, the Government introduced Millan's passport, which evidences numerous trips to Brazil, Argentina, Mexico and Chile; an affidavit by Pretrial Services Officer Evans Kavallines regarding the shortcomings of the electronic monitoring system as a means of preventing flight; and various glassine envelopes stamped with the Blue Thunder logo.

 Although the Court finds that the evidence presented supports Millan's continued detention on the grounds of risk of flight and dangerousness, the Court also determines that, due to delays occasioned by the Government, the length of Millan's pretrial detention has exceeded constitutional limits. Accordingly, the Court is compelled to order Millan's conditional release pending retrial in accordance with the conditions set forth at the conclusion of this Opinion.


 To determine whether the length of a defendant's pretrial detention violates the Due Process Clause, the Court must assess: (1) the length of the defendant's pretrial detention; (2) the extent of the Government's responsibility for the trial's delay; and (3) the strength of the evidence upon which the defendant's detention was based. See United States v. Orena, 986 F.2d 628, 630 (2d Cir. 1993); United States v. Gonzales-Claudio, 806 F.2d 334, 341-43 (2d Cir.), cert dismissed sub nom., Melendez-Carrion v. United States, 479 U.S. 978, 93 L. Ed. 2d 424, 107 S. Ct. 480 (1986). Applying these factors to the case at hand, the Court finds that further detention in this case would violate Millan's due process rights.

 A. Length of Pretrial Detention

 In support of Millan's continued detention, the Government relies primarily upon United States v. Melendez-Carrion, 820 F.2d 56 (2d Cir. 1987) ("Melendez-Carrion"), in which the Second Circuit affirmed detention orders entered by the district court even though the defendants had been detained continuously for nineteen months and were facing an anticipated additional thirteen months confinement. According to the Government, Melendez-Carrion demonstrates that the Second Circuit has upheld detention "certainly comparable to that faced here by Millan." See Letter from AUSA Dietrich L. Snell to the Honorable Shirley Wohl Kram of 6/9/93 (the "Snell Letter"), at 7.

 The Court finds this argument unpersuasive. Contrary to the Government's position, the Second Circuit in Melendez-Carrion actually found that a period of thirty-two months anticipated detention to "weigh in [defendants'] favor" for due process purposes. See United States v. Melendez-Carrion, 820 F.2d at 60. In fact, the court relied exclusively upon two other factors, namely, a determination that the Government was not responsible for the trial's delay and the defendants' clear risk of flight, and not the length of detention, in upholding the constitutionality of nineteen months continuous confinement. See id. at 60-62.

 Moreover, and perhaps more importantly, the Second Circuit subsequently released Ojeda Rios, the only Melendez-Carrion defendant still detained, *fn3" on the grounds that further pretrial detention would violate due process. United States v. Ojeda Rios, 846 F.2d 167, 168 (2d Cir. 1988) ("Ojeda Rios"). Despite, the lack of prosecutorial responsibility for Rios's continued detention and his risk of flight, the Second Circuit found that due process could not "tolerate" more than thirty-two months pretrial detention. Id. at 169.

 In the case at hand, Millan has been detained for twenty-three months and faces a nonspeculative additional detention of at least seven months (two months pretrial and five months retrial). *fn4" This period of at least thirty months pretrial confinement is virtually indistinguishable from the thirty-two months found unconstitutional by the Ojeda Rios court. See United States v. Ojeda Rios, 846 F.2d at 169. While recognizing that no "bright line" test exists for determining a permissible period of pretrial confinement, see United States v. Gonzales-Claudio, 806 F.2d at 340 (advocating a case-by-case assessment), the Court is strongly swayed by Ojeda Rios, as well as the overwhelming weight of caselaw, censuring such lengthy detention. See United States v. Gonzales-Claudio, 806 F.2d at 341 (fourteen months pretrial detention found to violate due process); United States v. Theron, 782 F.2d 1510, 1516 (10th Cir. 1986) (four months detention constitutes a due process violation); United States v. Zannino, 798 F.2d 544, 548 (1st Cir. 1986) ("in many, perhaps most cases, sixteen months would be found to exceed the due process limitation on pretrial confinement."); United States v. Gallo, 653 F. Supp. 320, 334 (E.D.N.Y. 1986) ("any pretrial detention of more than 90 days exceeds what Congress contemplated, and a pretrial detention of more than six months should flash a warning that a violation of due process has probably occurred."); United States v. Gatto, 750 F. Supp. 664, 676 (D.N.J. 1990) (continued detention beyond fifteen months considered punitive). As the Second Circuit explicitly recognized, "at some point and under some circumstances, the duration of pretrial detention becomes unconstitutional", see United States v. Gonzales-Claudio, 806 F.2d at 339, and further detention of an individual presumed innocent cannot be countenanced. With this standard in mind, the Court finds that pretrial confinement of approximately thirty months is a factor weighing heavily in Millan's favor.

 The second factor the Court must assess to determine whether Millan's pretrial detention exceeds due process limits, is the extent to which the prosecution bears responsibility for the delay in starting the trial. See United States v. Orena, 986 F.2d at 630; United States v. Gonzales-Claudio, 806 F.2d at 341-43. In weighing this factor, the Court "need not determine with precision the amount of pretrial delay attributable to the prosecution, nor assess the extent to which the Government may have been at fault in contributing to the delay. It suffices . . . to conclude that the Government, even if not deserving of blame, bears a responsibility for a portion of the delay significant enough to add considerable weight to the defendants' claim that the duration of detention has exceeded constitutional limits." United States v. Gonzales-Claudio, 806 F.2d at 342-43. Turning to the extent of the Government's responsibility for delay, the Court finds that this factor also weighs in Millan's favor.

 For purposes of deciding this issue, the Court notes the following undisputed facts. On March 24, 1993, Millan was severed from his codefendants due to a conflict of interest involving his attorney, Michael Pollack. Thereafter, on April 16, 1993, the Court declared a mistrial as to Millan's codefendants on the grounds of manifest necessity. See Order, dated April 16, 1993. Specifically, the Court found that a mistrial was necessary as: (1) the Government had improperly opened by making statements which could not be supported at trial; (2) the investigation underlying the Millan case and leading to the issuance of multiple wire taps and search warrants was tainted by evidence of law enforcement misconduct during the time of, and in connection with, the Millan investigation; (3) the Government failed to disclose evidence of alleged police misconduct to either the Court or defense counsel in a timely fashion; (4) the ...

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