DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court is defendant Kashika Speed's motion for reconsideration of Magistrate Judge Hugh B. Scott's Decision and Order denying defendant's motion for release from custody. For the following reasons, the Magistrate Judge's Decision and Order is affirmed and defendant Speed's motion for reconsideration is denied.
BACKGROUND AND RELEVANT FACTS
Defendants Thamud Eldridge, Kashika Speed, Kevin Allen, and Galen Rose are charged with various offenses including racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to distribute controlled substances, possession of firearms in furtherance of drug trafficking crimes, use, carry and discharge of a firearm during and in relation to crimes of violence causing death, and felon in possession of a firearm. (Dkt. No. 164)
Specifically, it is alleged that defendants were members of a criminal organization that engaged in the distribution of cocaine, cocaine base, marijuana and heroin and also committed acts of violence in furtherance of their drug trafficking enterprise, including murder, robbery and extortion. The organization operated principally on the East Side of Buffalo, New York. It is alleged that defendants robbed, murdered and attempted to rob and murder other individuals involved in drug distribution and that they carried, brandished and discharged firearms in furtherance of these activities. The murder counts involve the deaths of Thedrus Laster and Sam Jones who were killed, in separate incidents, in April 2005.
Defendant Speed has been incarcerated since on or about September 29, 2009, the time of his initial arraignment. On February 8, 2013, Speed filed a motion for release from custody on reasonable bail conditions. (Dkt. No. 193) Speed argued that his detention had reached 44 months as a result of Government delay as well the Government's untimely release of additional information, and that any further detention would constitute a due process violation. A bail review hearing was held before the Magistrate Judge on February 28, 2013. On March 25, 2013, Magistrate Judge Scott denied defendant's motion for release from custody, but without prejudice to revisit the matter and to propose reasonable bail conditions if the Government has not moved to set a trial date by March 14, 2014. (Dkt. No. 200)
Defendant Speed filed the instant motion asking this Court to reconsider the Magistrate Judge's Decision and Order. (Dkt. No. 206) He argues that his continued pretrial detention is a violation of his due process rights. The Government filed a response in opposition. (Dkt. No. 211) Oral argument was held on September 18, 2013, at which time the Court considered the matter submitted.
Section 3142(e) of Title 18 of the United States Code allows an individual to be detained prior to trial if it is found that no condition or combination of conditions "will reasonably assure the appearance of the [defendant]...and the safety of any other person and the community. See 18 U.S.C. §3142(e); United States v. El-Hage, 213 F.3d 74 (2d. Cir. 2000). The Second Circuit has further explained that: "[t]he government may detain a defendant prior to trial consistent with the Due Process Clause of the Fifth Amendment so long as confinement does not amount to punishment of the detainee." United States v. Millan, 4 F.3d 1038, 1043 (2d. Cir. 1993); El-Hage, 213 F.3d at 79 ("It is well-settled that so long as pretrial detention is administrative rather than punitive, it is constitutional.") However, due process places limits upon how long an accused may be detained in prison without a trial. El-Hage, 213 F.3d at 76. "[E]xactly how long such detention may extend before violating due process limits...has not been fixed in the law." Id.
In order to determine whether the length of pretrial detention has become sufficiently excessive to create a due process violation, a district court is instructed to consider: (1) the length of the detention; (2) the extent of the prosecution's responsibility for the delay of the trial; (3) the gravity of the charges; and (4) the strength of the evidence upon which detention is based, namely, the evidence of risk of flight and dangerousness. Millan, 4 F.3d at 1043; United States v. El-Gabrowny, 35 F.3d 63, 65 (2d. Cir. 1994). The Court has considered each of these factors in turn and concludes, in agreement with the Magistrate Judge, that defendant's continued detention does not violate his due process rights at this time.
While the length of pretrial detention is a factor in determining whether due process has been violated, the length of detention alone is not dispositive and "will rarely by itself offend due process." Milan, 4. F.3d at 1044; quoting United States v. Orena, 986 F.2d 628, 631 (2d. Cir. 1993). Indeed, the Second Circuit has held, in certain circumstances, that periods of pre-trial detention of up to and including 40 months do not violate a defendant's due process rights. See United States v. Vondette, 5 Fed.Appx. 73, 75-76 (2d. Cir. 2001) (holding that defendant's 40 month pretrial detention did not violate due process where defendant was leader of a drug enterprise and faced life imprisonment); United States v. El-Hage, 213 F.3d 74, 78-81 (2d. Cir. 2000) (finding, after weighing all factors, that a 30 to 33 month pretrial detention did not violate defendant's due process rights); United States v. Milan, 4 F.3d 1038 (2d. Cir. 1993) (a 30 month period of detention did not violate defendant's due process rights).
Here, defendant has been incarcerated for approximately 50 months. By the time this case goes to trial, his detention time may be close to 55 months. As recognized by the Magistrate Judge, this is an extremely prolonged period of time to be detained and awaiting trial. In fact, it is longer than the extensive periods of pretrial detention upheld by the Second Circuit and discussed above. Therefore, the length of defendant Speed's pre-trial detention weighs strongly in favor of his motion for release.
However, as previously indicated, the length of detention is not the only factor this Court must evaluate in evaluating defendant's motion. The second factor to be considered is the extent to which the Government is responsible for the delay. Here, the Magistrate Judge found that two distinct periods of time passed through no fault of the Government. The Magistrate Judge attributed the first block of excusable time, a period of just over ten months, to the resolution of defendants' motion to recuse the entire United States Attorney's Office for the Western District of New York and Assistant United States Attorney ("AUSA") Joseph Tripi. This motion came about after AUSA Tripi disclosed certain statements made by a City of Buffalo police officer that excessive force had been used against defendant Eldridge. Magistrate Judge Scott ...