The opinion of the court was delivered by: Hurley, District Judge
Rodney Arnoldo Morrison ("defendant," or "Morrison") is charged in a second superseding indictment with Racketeering (Count One), Racketeering Conspiracy (Count Two), Arson Conspiracy (Count Three), Arson (Count Four), Conspiracy to Use Extortionate Means to Punish for Nonrepayment of Credit (Count Five), Extortionate Punishment for Nonrepayment of Credit, (Count Six), Use of Fire To Commit a Felony (Count Seven), two counts of Illegal Possession of a Firearm (Counts Eight and Nine), Conspiracy to Use Interstate Facilities in the Commission of Murder for Hire (Count Ten), and Use of Interstate Facilities in the Commission of Murder for Hire (Count Eleven). Additionally, the indictment contains an application by the government seeking the criminal forfeiture of certain assets.
Following defendant's arraignment on the initial indictment, a detention hearing was held before me. Upon its conclusion on September 3, 2004, defendant was ordered detained as a risk of flight. Thereafter, he unsuccessfully made applications to Magistrate Judges James Orenstein (February 16, 2006), and A. Kathleen Tomlinson (May 15-16, 2006), to have that status changed to release on bail with conditions.
The subjects of this opinion are (1) defendant's motion claiming that his protracted pretrial detention violates due process, (2) his appeal of Judge Tomlinson's order denying him bail, and (3) the effect of the second superseding indictment upon defendant's custody status.
During the course of a two day bail hearing held before me on July 12th and 13th of this year, I provided a partial bench decision concerning item (1), viz. the due process claim. (July 12, 2006 Transcript ("Tr.") at 119-126; see also July 13, 2006 Tr. at 168-174.) The purpose of this decision is to complete that bench decision, and to resolve items (2) and (3).
As explained by the Second Circuit in United States v. Millan, "[t]o determine whether the length of pretrial detention has become constitutionally excessive, we must 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,' United States v. Orena, 986 F.2d 628, 630 (2d Cir. 1993); that is, the evidence concerning risk of flight and danger to the safety of any other person or to the community." 4 F.3d 1038, 1043 (1993). Each of the these three factors will be addressed seriatim.
The first factor was addressed by the Court during its partial bench decision on July 12, 2006. As noted at that time, while the length of detention will rarely by itself offend due process, United States v. El-Gabrowny, 35 F.3d 63, 65 (2d Cir. 1994), defendant's pretrial detention of almost two years weighs in favor of granting his application.
2. Extent Delay Attributable to Government
The situation is otherwise with respect to the second factor. As partially explained in the bench decision, little, if any, of the delay in bringing the defendant to trial is attributable to the government. Instead, the overriding reason for the delay was the entry and exit of a series of defense attorneys, compounded by the (1) agreed upon complexity of the case, and (2) the existence of ongoing plea negotiations which involved both state and federal prosecutors. (See, e.g., as to causes of delay: (1) September 22, 2004 Tr. at 2-5 (case adjourned to October 29, 2004 for further status conference; case designated as a complex case, on consent, after then-defense counsel Henry E. Mazurek, Esq. of the Law Office of Gerald L. Shargel explained to Court "given the ongoing investigations and the potential for possible resolution of those issues prior to any further indictments, I think it would be helpful for the parties to have the extra time" (id. at 2-3)); (2) November 12, 2004 Tr. at 2-3 (case called; Mr. Morrison not present due to quarantine in correction facility; counsel advise Court of ongoing plea negotiations and matter adjourned to January 7, 2005; Mr. Mazurek agrees to advise Mr. Morrison of what transpired in his absence, and to inform him that the Court will place the case on the calendar earlier - assuming the quarantine problem is resolved - at his request); (3) April 8, 2005 Tr. at 2-3 (Mr. Mazurek reports that Mr. Morrison is seeking new counsel; Mr. Morrison informs Court that he is "in the process of interviewing new lawyers," that he has "a complex case," and that he is trying "to find the best lawyer" (id. at 3); control date of May 6, 2005 selected, with the defense advised by the Court that as soon as new counsel files a notice of appearance, the case will be calendared if the notice is filed prior to the control date); (4) May 19, 2005 Tr. at 2-3 (Ephraim Savitt, Esq. appears as new counsel for Mr. Morrison; case adjourned on consent, after counsel confer, to July 8th for a further status conference); (5) October 7, 2005 Tr. at 2-3 (Anthony J. Colleluori, Esq. appears for Mr. Morrison, as co-counsel with Mr. Savitt; case adjourned until November 18, 2005 to permit Mr. Colleluori to be advised by Mr. Savitt about the discovery and other aspects of the case to date); and (6) January 20, 2006 Tr. at 2-3 (Anthony Colon of Cochran Firm joins the defense team; Court advised that plea negotiations continuing and case adjourned on consent to March 17, 2006.)
Mr. Colleluori, by letter dated March 10, 2006, advised the Court that both Mssrs. Savitt and Colon had withdrawn from the case, and requested a six week adjournment "in order to give the new attorneys an opportunity to review the file and be familiarized with the case." (Gov't's Mem. Opp'n to Def.'s Mot. to Dismiss Ex. 2.) That request was granted, with the next court date being set for April 28, 2006.
The Court - and apparently the government - was advised for the first time on June 23, 2006, that the plea negotiations referenced repeatedly by defendant's prior attorneys, including Mr. Mazurek and Mr. Savitt, were no longer extant, thus leading to the cancellation of the meeting between the government and defense scheduled for noon that day. (See June 23, 2006 Tr. at 11-14.)
In an apparent effort to side-step the obvious, i.e. that the adjournments about which defendant and current counsel now complain were typically granted to permit new counsel to familiarize himself with the case*fn1 and/or to further pursue plea negotiations (coupled with the fact that defendant and his then-counsel signed speedy waivers throughout the process), defendant proffers:
In addressing the second factor, the reason for the delay, the length of the delay has been predicated upon supposed "plea negotiations". In this case, the government "encouraged" the defendant to sign waivers of his speedy trial rights, claiming the need for plea negotiations. In fact, the government never intended for the defendant to plea to the indicted charges. The only plea acceptable to the government included the defendant pleading guilty to a state crime in which he was not, nor may ever be charged with. The government breached its obligation of good faith and literally lulled the defendant into waiving his statutory and constitutional rights to a speedy trial, not because of plea bargaining, but to extend the investigation over two years post indictment. . . . .
The time apportioned for plea negotiations amounts to nothing more than a sham in order to permit the government to continue its investigation in the hopes of attempting to build a case against Mr. Morrison. (June 26, 2006 Aff. of Thomas P. Cleere, Esq., attached to "Notice of Pretrial Motions" ¶¶ 6, 8.)
Significantly absent from Mr. Cleere's affirmation is any firsthand information regarding the "sham" plea negotiations and the government "lull[ing] the defendant into waiving his . . . constitutional right to a speedy trial." For instance, no affidavit of Mr. Morrison or of any of his prior, supposedly hoodwinked attorneys*fn2 has been furnished. If Mr. Cleere was personally involved in recent plea negotiations, he fails to so state. Instead, he simply charges the government with grievous misconduct devoid of specifics. More is required to call into question the strong evidence cited by the government as to factor two.
In sum, the evidence, as distinct from conclusory assertions, indicates that the delays are traceable primarily to the defendant.*fn3
3. Strength of Detention Evidence
The third Millan factor, though mentioned, was unresolved by the Court during its partial bench decision. As explained infra, the strength of the evidence upon which the detention was based weighs against defendant's due process-based application.
4. Conclusion Re Pretrial Detention
Due Process Claim Factors two and three more than counterbalance factor one; accordingly, defendant's due process motion is denied.*fn4
REVIEW OF MAY 16, 2006 DECISION OF MAGISTRATE JUDGE TOMLINSON, AND EFFECT OF THE SECOND SUPERSEDING INDICTMENT ON DEFENDANT'S CUSTODY STATUS
1. Government's Position Before Judge Tomlinson That Defendant not Entitled to Another Bail Hearing
The government argued to Judge Tomlinson that the newly created and significantly enhanced proffered bail package did not satisfy the "change of circumstance" statutory prerequisite for the holding of another bail hearing because there was nothing to indicate that the nature and amount of the assets being presented were not known by the defendant in September ...