The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge
Pending before the Court is a motion (Dkt. No. 671) by defendant Hector Rodriguez for release on reasonable bail conditions. Counting both state and federal custody, defendant has been in continuous custody on charges still pending against him since October 1, 2009. Since then, defendant's drug charges were transferred to federal court by way of criminal complaint (10-MJ-6); presented to a grand jury and filed as an indictment in a separate case (10-CR-189); incorporated into a Second Superseding Indictment in this case that made defendant part of an alleged racketeering enterprise and conspiracy; and then carried over into two additional superseding indictments that added a firearm charge and two overt acts relating to the racketeering conspiracy.
Defendant argues for release on the basis that, after 38 months, five indictments in this case, and numerous reschedulings to accommodate waves of added defendants, the Government still has not even completed discovery.
According to defendant, the Government's failure to tie up all loose ends with discovery means that additional motion practice may yet be necessary; combining that possible need with hearings scheduled in February to resolve numerous other pending motions, defendant almost certainly will not see a trial anytime in the near future. Under these circumstances, defendant argues that further pretrial detention would be punitive and would constitute a due-process violation. The Government opposes release, stressing that much of the delay in this case occurred from defense requests for extensions of time. The Government also emphasizes that due-process analysis follows no bright-line rules as to when detention becomes excessive.
The Court held oral argument on December 14, 2012. For the reasons below, the Court grants the motion but stays any release for 30 days in anticipation of further proceedings before Judge Arcara, the presiding trial judge in this case.
A. Original Charges Against Defendant
Across a number of proceedings and accusatory instruments dating back to March 2010, the Government has accused defendant of drug activity, firearm possession, and gang-based racketeering related to his membership in a street gang called the 10th Street Gang.
The alleged events connecting defendant to the present case began with his state arrest in October 2009. At that time, local law enforcement agents and confidential informants working with them were investigating defendant for gang-related drug activity observed at two different houses in the City of Buffalo. On October 1, 2009, local law enforcement agents arrested defendant after observing him with cocaine while in his car. The agents charged defendant under state law with Criminal Possession of a Controlled Substance with Intent to Sell and Criminal Use of Drug Paraphernalia with Packing Material.
By the spring of 2010, state and federal prosecutors decided not to prosecute defendant at the state level but rather at the federal level. On February 5, 2010, the Court (Schroeder, M.J.) signed a criminal complaint (10-MJ-6) in which the Government accused defendant of drug possession and drug conspiracy in violation of 21 U.S.C. § 841(a) and 21 U.S.C. § 846. During proceedings on March 29, 2010, defendant waived his right to a detention hearing at that time because he was serving a state parole sentence but reserved his right to revisit detention in the future. On June 29, 2010, the Government filed a two-count indictment (10-CR-189) that contained the same drug-possession and drug-conspiracy charges as the prior complaint. At the conclusion of a detention hearing on August 24, 2010, Magistrate Judge Schroeder ordered defendant detained. On August 26, 2010, Magistrate Judge Schroeder issued a formal detention order in which he found defendant to be a flight risk and a danger to the community. Magistrate Judge Schroeder took the time in his detention order to set forth the details of defendant's lengthy history of criminal conduct and parole violations:
In January of 2008, he was charged with criminal possession of a controlled substance, a Class B Felony, as well as a Class A misdemeanor and a Class B misdemeanor, wherein he was convicted by reason of his plea of guilty to criminal possession of a controlled substance, a narcotic drug, a Class B felony, and sentenced to one year. The defendant was allowed to be released and placed on parole, but as indicated in the Pretrial Services Report, in November of 2008, the very same year in which he entered his plea, his plea having been entered in August of that year, he was found to have been in violation of his parole terms. As a result, he was required to serve out his sentence. Then, notwithstanding his having been convicted and released on that January 2008 charge, in April of 2008, he was arrested and charged with criminal possession of a controlled substance in the 3rd degree with intent to sell, a Class B felony, as well as criminal possession of a controlled substance, a narcotic drug, a Class B felony, as well as a couple of misdemeanors for possession of controlled substances. Once again in August of 2008, the defendant pled guilty to attempted criminal possession of a controlled substance of the 5th degree, that is, cocaine of 500 mg or more, a Class E felony, and in September of 2008, he was sentenced to one year of imprisonment and then also one year of supervised release after completion of that sentence. Those charges occurred while the defendant was released on bail in the January 2008 case, which indicates his failure to obey or abide by the terms and conditions of release that had been imposed on him in the first case of January 2008. In May of 2008, the defendant was charged with criminal possession of a controlled substance in the 5th degree, a Class D felony, and once again in August of 2008, he entered a plea of guilty to attempted criminal possession of a narcotic drug in the 4th degree, a Class D felony. Once again, as part of that September 2008 sentencing, he was sentenced to a term of imprisonment with a term of supervised release thereafter. In October of 2009, while at the age of 21, the defendant was once again charged with criminal possession of a controlled substance, a narcotic drug, a Class B felony, as well as criminal possession of a controlled substance in the 3rd degree, a narcotic drug, with intent to sell, a Class B felony. Those charges are the state charges that have also basically formed the charges in the present Indictment. I reference all of those charges and arrests and pleas because they all involve drug counts-drug counts that occurred while the defendant was already charged with a prior drug crime and on bail or while he was on parole which resulted in his parole being violated and his being re-arrested while on parole supervision. That criminal history, coupled with the presumption created by the Statute and my consideration of what has been proffered by the government as well as what has been proffered on behalf of the defendant cause me to conclude that the presumption has not been rebutted. (Case No. 10-CR-189, Dkt. No. 12, at 3--5.)
B. Incorporation into the Present Case (09-CR-331)
By late 2010, the Government decided that it had enough evidence linking defendant's conduct to its wider investigation of the 10th Street Gang that it wanted to incorporate defendant's case into the case against that gang. The Government requested and received from Judge Arcara an order dismissing Case No. 10-CR-189. (Id. Dkt. No. 13.) Just before that dismissal, on September 15, 2010, the Government filed a Second Superseding Indictment in this case (Dkt. No. 69) that contained four counts against defendant. In Count One, the Government accused defendant of racketeering conspiracy in violation of 18 U.S.C. § 1962(d). The Government further alleged the following overt acts by defendant in furtherance of the conspiracy:
1. On or about January 24, 2008, defendants PEEBLES and H. RODRIGUEZ, and unindicted co-conspirators possessed approximately 17.52 grams of cocaine base, twenty-seven (27) hydrocodone tablets weighing approximately 17.28 grams, a quantity of marijuana, a digital scale, and $364 U.S. currency at 185 Breckenridge Street, in the neighborhood controlled by the 10 Street gang. (Dkt. No. 69 at 18.)
2. On or about February 20, 2008, defendant H. RODRIGUEZ possessed 28 plastic corners containing approximately 3.43 grams of cocaine base at 185 Breckenridge Street, in the neighborhood controlled by the 10 Street gang. (Id. at 19.)
3. On or about March 27, 2008, defendant H. RODRIGUEZ possessed a plastic bag containing approximately 16.68 grams of cocaine base, a Hi Point Model JF 9mm Luger, bearing serial number 501247, with nine (9) rounds of 9mm ammunition at 185 Breckenridge Street, Buffalo, New York, in the neighborhood controlled by the 10 Street gang. (Id. at 20.)
4. On or about April 22, 2008, defendant H. RODRIGUEZ possessed approximately 12.52 grams of cocaine base, a quantity of heroin, and a quantity of marijuana at 185 Breckenridge Street, in the neighborhood controlled by the 10 Street gang. (Id. at 21.)
5. On or about October 1, 2009, defendant H. RODRIGUEZ possessed a quantity of cocaine base near the intersection of Connecticut Street and Prospect Avenue, in the neighborhood controlled by the 10 Street gang. (Id. at 25--26.)
6. On or about October 1, 2009, defendant H. RODRIGUEZ possessed over one-half ounce of cocaine base and plastic baggies at a house located at 303 Fargo Avenue, lower apartment, in the neighborhood controlled by the 10 Street gang. (Id. at 26.)
The Government also alleged, as a special factor for Count One, that defendant "did knowingly, willfully, and unlawfully, combine, conspire, and agree together and with others, known and unknown, to commit the following offenses, that is, to possess with intent to distribute, and distribute, 50 grams or more of a mixture and substance containing cocaine base, and 5 kilograms or more of a mixture and substance containing cocaine, Schedule II controlled substances, in violation of Title 21, United States Code, Sections 846, 841(a)(1), and 841(b)(1)(A)." (Id. at 32--33.)
In Count Two of the Second Superseding Indictment, the Government charged defendant with racketeering in violation of 18 U.S.C. § 1962(c) and attributed five acts of racketeering to him. In Count 35, the Government accused defendant of drug possession with intent to distribute for the events of October 1, 2009. In Count 46, the Government accused defendant and others of drug conspiracy. Defendant did not ask the Court to revisit his detention during the pendency of the Second Superseding Indictment.
On April 28, 2011, the Government filed a Third Superseding Indictment against defendant and others. All of the previous charges against defendant remained, in renumbered Counts 1, 2, 43, and 56, but the Government added a charge (Count 57) of possession of firearms in furtherance of drug crimes in violation of 18 U.S.C. §§ 924(c)(1) and 2. Defendant did ask the Court to revisit his detention after the Third Superseding Indictment and filed a bail motion on July 13, 2011. (Dkt. No. 251.) Following a detention hearing on July 6, 2011, this Court denied the motion on the grounds that no circumstances had changed since Magistrate Judge Schroeder's order of August 26, 2010. (Dkt. No. 265.) Defendant filed another bail motion on December 13, 2011. (Dkt. No. 371.) The Court held another bail review hearing on February 2, 2012 and ultimately denied that bail motion on April 12, 2012. (Dkt. No. 488.) In denying the motion, the Court noted again that circumstances had not changed, except that the charges against defendant appeared to have intensified since Magistrate Judge Schroeder's original detention order. (Id. at 6.) As for the growing duration of defendant's detention, the Court noted the following at the time:
At present, the Court has in place a new schedule that requires all defendants to file motions by July 16, 2012, that requires the Government to respond by August 30, 2012, and that sets oral argument for September 19, 2012. If this schedule changes in the months ahead for any reason attributable to the Government then the time may come to undertake a deeper due-process analysis and to require the Government to set forth a plan for a timely resolution of ...