The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
The defendant, Rodney Hill, has been in pretrial detention since his arrest on December 16, 2009, for alleged cocaine trafficking through a continuing criminal enterprise and for firearms offenses. Defendant Hill was ordered detained by Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to 18 U.S.C. § 3142(e) on grounds that he is a danger to the community and a serious risk of flight for whom no condition or combination of conditions will reasonably assure the safety of the community and the appearances of the defendant in court as required. The defendant appeals his pretrial detention to this Court pursuant to 18 U.S.C. § 3145(b) and seeks release from pretrial detention on bail conditions. The defendant also argues that his detention without trial for the 22 months since his arrest is so long that it violates the Due Process Clause of the Fifth Amendment. U.S. Const. amend. V.
For the reasons that follow, the Court finds that defendant Hill is a serious risk of flight and a danger to the community. There is strong evidence that the defendant attempted to possess approximately 10 kilograms of cocaine on September 10, 2009. If the defendant is convicted of that conduct alone, let alone the other serious charges that he faces, he will be sentenced to a mandatory term of life imprisonment because of his record of prior drug felony convictions. In light of the strong evidence and the mandatory term of life imprisonment, the defendant has a very strong motive to flee if released on bail.
In addition, there is substantial evidence of defendant Hill's participation in cocaine trafficking through a continuing criminal enterprise. Defendants charged with such serious crimes are legally presumed to be a danger to the community because they pose a significant risk to commit additional crimes even while on pretrial release. The defendant's criminal history includes a past pattern of committing crimes while under court-ordered supervision that confirms the legal presumption that he is a danger to the community.
Despite finding that defendant Hill is a serious flight risk and a danger to the community, the Court has considered releasing the defendant to house arrest on electronic monitoring and imposing other conditions to permit his pretrial release. However, the Court finds that there are no available conditions or combination of conditions that will adequately protect the community and assure the appearances of the defendant as required. The Court therefore affirms the defendant's pretrial detention pursuant to 18 U.S.C. §§ 3142 and 3145(b).
The Court has reviewed the prior proceedings in this case particularly carefully because of the 22-month duration of defendant Hill's pretrial detention and because the defendant's appeal of the detention rulings pursuant to 18 U.S.C. § 3145(b) was unaddressed on the Court's docket for far too long due to an oversight. In light of that review, the Court also finds that the continuing pretrial detention of the defendant is serving legitimate purposes of flight prevention and community protection and does not violate due process. For all of these reasons, the Court denies, without prejudice, the defendant's request for pretrial release.
Defendant Hill was arrested on December 16, 2009, on a complaint charging him and 26 other persons with cocaine-related drug-trafficking offenses in violation of 21 U.S.C. §§ 841(a)(1), 843(b), and 846, with possession of a firearm during or in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c), and with participating in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (the "CCE"). The defendant has three prior felony drug offense convictions. If he is convicted of the offense of possession with intent to distribute 5 kilograms or more of cocaine, or of conspiracy to do the same, he will face a mandatory minimum sentence of life imprisonment. 21 U.S.C. §§ 841(b)(1)(A), 846. If convicted of participating in the CCE, the defendant will face a mandatory minimum sentence of 20 years imprisonment. 21 U.S.C. § 848(a).
The complaint, which was authorized by Magistrate Judge Schroeder, is supported by an affidavit of a law enforcement officer alleging that six months of court-authorized wiretap intercepts, controlled purchases of narcotic drugs, informant information, and other evidence establish the defendants' long-standing participation through the Central Park Gang in Buffalo, New York, and elsewhere, in trafficking multiple-kilogram quantities of cocaine and cocaine base. In particular, the affidavit includes excerpts of wiretap intercepts from September 8, 2009, through September 11, 2009, and related evidence, alleged to prove that defendant Hill and other members of the Central Park Gang obtained approximately 10 kilograms of powder cocaine in Houston, Texas. Dkt. No. 1, pp. 48-52, and No. 1-2, pp.1-24 (Affidavit of law enforcement officer, sworn to on December 15, 2009, ¶¶ 30-79). The 10 kilograms of cocaine were being shipped by commercial interstate carrier to an address in Buffalo alleged to be defendant Hill's when the cocaine was seized by law enforcement officers in Houston. See Dkt. No. 1, p. 14, n.12, and Dkt. No. 1-2, pp. 17-18, ¶ 68.
The United States moved for pretrial detention of defendant Hill at the initial appearance on the complaint on the grounds that the defendant is dangerous and a serious flight risk. No hearing was held in order to give the defendant time to retain counsel. Counsel was eventually assigned to represent the defendant and he waived his detention hearing on January 22, 2010. The waiver was without prejudice to the defendant later seeking pretrial release if circumstances changed.
Defendant Hill filed a motion seeking pretrial release on March 11, 2010. After responsive briefing by the United States, a hearing was held on April 8, 2010*fn1 . The defendant argued that his extensive criminal record is not as bad as it was portrayed in a United States Pretrial Services Report recommending that he be detained. He maintained that he has never been convicted of a violent felony, that his serious criminal record is in his past, and that his past non-compliance with court-ordered supervision is also not as bad as was portrayed in the Pretrial Service Report. The defendant argued that he has strong roots in this District, including family and substantial real property, and that releasing him pending trial on electronic monitoring, and other conditions that he did not specify, would reasonably assure his appearances in court as required and the safety of the community.
The United States relied upon the statutory presumptions in 18 U.S.C. § 3142(e)(3) that defendant Hill is a flight risk and a danger to the community that are triggered by probable cause to believe that the defendant committed the serious drug-trafficking offenses charged in the complaint. The United States repeated that it was proffering the complaint that charged the offenses, and the long affidavit upon which the complaint was based, in support of the statutory presumptions of danger and flight risk, among other evidence.
The United States specifically proffered that the defendant had acted as an advisor to two defendants charged with the CCE in the complaint and that the defendant had introduced the two defendants to sources of cocaine in Georgia and in Texas. Dkt. No. 350, pp. 7-8. It proffered that the CCE was obtaining cocaine from two brothers at a certain retail furniture store, and that some other brothers of the two were smuggling the cocaine into the United States from Mexico. Id.
The United States insisted that a New York Attempted Robbery conviction sustained by defendant Hill when he was 16 years of age in 1981 was a violent crime. The United States stressed that the defendant qualifies as a career offender and that he faces such long terms of imprisonment, if convicted, that he has a strong incentive to flee. It noted that the defendant has personal contacts in various parts of the country that enhance the risk that he will flee to avoid prosecution and the long term of imprisonment he faces. Dkt. No. 350, pp. 8-9.
Magistrate Judge Schroeder ordered that defendant Hill remain detained at the close of argument and entered a written Order of Detention Pending Trial (the "detention order") on April 9, 2010. Dkt. No. 152. The detention order surveyed the defendant's lengthy criminal record and found that the defendant has a pattern of past failures to abide by court-ordered conditions of release. Id. at pp. 3-5. Magistrate Judge Schroeder also found that the lengthy periods of incarceration that the defendant faces based upon the evidence in the affidavit supporting the complaint created a motivation to flee. The Magistrate Judge concluded:
When I consider all of these circumstances in their totality, I find that what has been proffered on behalf of the defendant is not sufficient to rebut the presumption and that the defendant does constitute a danger to the community and members of the community and also does constitute a risk of flight.
Defendant Hill timely filed an appeal of the detention order pursuant to 18 U.S.C. § 3145(b) on April 22, 2010. Dkt. No. 155. The defendant argued that his serious criminal past was more than ten years ago, that he had never been convicted of a violent felony, and that he should be granted pretrial release and placed on electronic monitoring. Dkt. Nos. 155-3 at pp. 11-12, 155-4 at pp. 4-6. The defendant offered two rental homes in the City of Buffalo that he owned as security for his appearances and argued that he could better maintain the rental properties and could obtain employment as a welder if he were released on bail. Id.
At the time defendant Hill filed the appeal of the detention order, the case was pending on the complaint authorized by Magistrate Judge Schroeder and no District Court Judge had been assigned. Magistrate Judge Schroeder took up the appeal of the detention order himself, as if it were a motion to reopen the detention hearing pursuant to 18 U.S.C. § 3142(f)(2). See Dkt. Nos. 157, 222*fn2 .
After the United States filed its response to the defendant's motion, Magistrate Judge Schroeder ruled on June 29, 2010, that no changed circumstances warranted his reconsideration of the detention order and denied the appeal. Dkt. No. 222.
An indictment was also returned on June 29, 2010, the same date on which Magistrate Judge Schroeder declined to reopen defendant Hill's detention hearing, and the District Judge assignment was made by the Clerk of the Court. The Indictment charged cocaine-related drug-trafficking crimes in violation of 21 U.S.C. §§ 841(a)(1), 843(b), and 846, possession of a firearm during or in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c), possession of a firearm by a ...