United States District Court, W.D. New York
DECISION AND ORDER
HUGH B. SCOTT, Magistrate Judge.
Pending before the Court is a motion (Dkt. No. 135) by defendant Daniel Rodriguez ("Rodriguez") to dismiss the indictment or, in the alternative, to set bail or at least to direct the United States Marshal Service ("USMS") to house him in the Western New York area. Rodriguez has requested bail twice before, based on the usual bail factors set forth in 18 U.S.C. §§ 3142(c) and 3142(g). (Dkt. Nos. 50, 113.) The pending motion differs from Rodriguez's prior requests in that it rests on his remote detention. Beginning around May 19, 2014, the USMS moved Rodriguez to Ohio and then Virginia, hundreds of miles away from counsel. Rodriguez argues that the distance between him and counsel makes face-to-face consultation impossible for important pretrial matters related to discovery review, motion and hearing preparation, and discussions that could lead to an early resolution. If Rodriguez cannot prepare his defense as effectively as when he was housed locally, he concludes, then his remote detention violates his Sixth Amendment right to effective assistance of counsel.
The Government opposes Rodriguez's motion for several reasons. The Government has reviewed Rodriguez's detention history and notes that Rodriguez was in local custody for more than 800 days before his remote detention began. Given how much time Rodriguez had to prepare his case while housed locally, and given how recently remote detention began, the Government concludes that Rodriguez's communication with counsel has not actually suffered and is premature at best. The Government also points to alternative means of communication and travel that Rodriguez's counsel have available to them. Finally, the Government argues that Rodriguez's Sixth Amendment claim fails without a showing of actual prejudice.
The Court held oral argument on July 22, 2014. For the reasons below, the Court denies Rodriguez's motion but without prejudice to revisit the issue after 60 days.
The Court will summarize the case briefly and otherwise will assume familiarity with its history. This case concerns allegations that Rodriguez and co-defendants Ernest Green ("Green") and Rodshaun Black ("Black") conspired to commit Hobbs Act extortion against someone named Jabril Harper. In the one-count Indictment, filed March 6, 2012, the Government alleges that Rodriguez "did knowingly, willfully and unlawfully combine, conspire and agree together and with others, known and unknown to the Grand Jury, to obstruct, delay and affect commerce, as that term is defined in Title 18, United States Code, Section 1951(b)(3), and the movement of articles and commodities in commerce, by robbery as that term is defined in Title 18, United States Code, Section 1951(b)(1), and extortion, as that term is defined in Title 18, United States Code, Section 1951(b)(2), in particular, the robbery and extortion of assets, including jewelry, mobile telephones, cocaine base, and money, from Jabril Harper a/k/a Bril, an individual engaged in the unlawful possession and distribution of controlled substances, including cocaine base. All in violation of Title 18, United States Code, Section 1951(a)." (Dkt. No. 1.) In a pre-indictment complaint filed against Green (Case No. 12-MJ-2037, Dkt. No. 1), the Government provided details from its investigation and from confidential informants that the conspiracy in question culminated in the kidnapping, armed robbery, and murder of Harper on December 16, 2009. The Government has disclosed that Rodriguez was accomplice "A-2" in the pre-indictment complaint against Green. The case is considered "death penalty eligible"; the Government has not yet informed the Court of a formal "no seek" decision from the Department of Justice.
Rodriguez has been in continuous federal custody since his arrest on March 6, 2012, but his locations have changed. From March 6, 2012 until about May 19, 2014, the USMS housed Rodriguez in various detention facilities in the Western New York area. After May 19, 2014, the USMS began housing Rodriguez in two places outside Western New York. Rodriguez spent some time at the Northeast Ohio Correctional Center in Youngstown, Ohio, approximately 185 miles by road from downtown Buffalo. The USMS then moved Rodriguez to the Northern Neck Regional Jail in Warsaw, Virginia, approximately 483 miles by road from downtown Buffalo. Counsel for Rodriguez and the Government received notice of the moved to Virginia through an email message from the USMS. (Dkt. Nos. 135 at 8 and 136 at 9.) In the message, the USMS advised counsel to "consider sending orders to produce (OTP's) 10 business days before scheduled hearing dates" to help ensure Rodriguez's appearance at future proceedings. ( Id. ) Rodriguez's counsel responded to the Virginia move by writing a letter to the USMS requesting a closer pretrial detention facility. ( Id. at 11-13.) The letter emphasized that the move to Virginia hampered Rodriguez's right to effective assistance of counsel because "[t]he parties are currently engaged in extensive discovery review and motion practice." ( Id. at 11.) According to Rodriguez, the USMS never responded to the letter. Meanwhile, the record contains no details about the logistics of Rodriguez's remote detention, such as: how many times counsel has asked the USMS to produce Rodriguez for face-to-face consultation in Buffalo, and how the USMS might have responded to those requests; USMS policies regarding defendant transport, apart from the request for 10-day advance notice; and the policies of the remote detention facilities in Ohio and Virginia, particularly with respect to accommodating attorney visits and arranging private telephone and video conferences.
Rodriguez has followed up on his request to the USMS by filing the pending motion. Rodriguez argues that the distance between him and his counsel deprived him of the ability to continue a meaningful attorney-client relationship. Rodriguez's counsel would have to drive approximately 8.5 hours one way to see him; even a same-day, round-trip flight arrangement would require an entire day of travel. Attorneys for defendants housed locally do not face that kind of travel burden. With oral arguments coming up and pretrial hearings at least possible, Rodriguez needs to review pretrial strategies face-to-face with counsel but cannot. "Given the significant distance between Mr. Rodriguez and his attorneys, his participation in discovery review and further practice has been wholly curtailed." (Dkt. No. 136 at 3.) Rodriguez concludes that this curtailment violates his Sixth Amendment right to effective assistance of counsel, which justifies dismissal of the indictment altogether. In the alternative, Rodriguez asks for one of two accommodations that at least would help him prepare his defense with counsel-either release on bail or a transfer to a detention facility in Western New York, where counsel could meet with him much more easily. Rodriguez's requests coincide with the Court's direction, in its first order denying Rodriguez bail, that "defendant shall be afforded reasonable opportunity for private consultation with counsel." (Dkt. No. 67 at 8.) That language tracked the statutory language of 18 U.S.C. § 3142(i)(3).
The Government opposes any of the requested relief in Rodriguez's motion. From March 6, 2012 to May 19, 2014, Rodriguez was in local custody for more than 800 days before his remote detention began. In pointing out the length of local custody, the Government implies 1) that Rodriguez had plenty of time while housed locally to work with counsel on the main structure of his defense for this case; and 2) that Rodriguez saw his counsel sufficiently infrequently while he was housed locally that remote detention will make no practical difference. More explicitly, the Government argues that Rodriguez's motion ignores the USMS's need for discretion in managing housing to address logistical and safety concerns. The Government also argues that Rodriguez's motion makes no mention of alternative methods of communication, even if only to disapprove of them. According to the Government, detention facilities used by the USMS have the capacity for private telephone and video consultation that respects the privileged nature of the attorney-client relationship. Finally, the Government points to Rodriguez's inability to allege actual prejudice. Rodriguez's counsel highlights the length of a drive to Virginia, but the Government counters that the Virginia facility is less than two hours from Reagan National Airport in Washington, D.C., "which has direct-flight service to and from Buffalo and would allow for a same-day round-trip, including a multi-hour inperson visit." (Dkt. No. 139 at 2.) While flight arrangements perhaps would impose some inconvenience, inconvenience alone does not establish a Sixth Amendment violation. Consequently, according to the Government, Rodriguez "has not delineated any actual inability to meet with or talk to counsel, and he has not alleged that the Marshals have hindered any such attempt in any way." ( Id. at 4.)
A) Statutory versus constitutional grounds
Before the Court addresses the substance of Rodriguez's motion, it must address two preliminary matters. The first matter concerns refining the exact issue that requires resolution. Rodriguez has not furnished much information about any policies or practices actually governing his remote detention. Rodriguez also filed the pending motion almost immediately after his remote detention began, claiming that the "vast distance between [him] and his attorneys has created an immediate violation of his Sixth Amendment right to the effective assistance of counsel." (Dkt. No. 136 at 4.) Rodriguez then cites cases containing Sixth Amendment analyses, such as Cobb v. Aytch, 643 F.2d 946 (3d Cir. 1981), and Procunier v. Martinez, 416 U.S. 396 (1974), overruled by Thornburgh v. Abbott, 490 U.S. 401, 414 (1989) ("[W]e prefer the express flexibility of the [ Turner v. Safley, 482 U.S. 78 (1987)] reasonableness standard."). Rodriguez concludes his motion by stating that his "right to effective assistance of counsel was violated by his recent transfer to a facility in Warsaw, Virginia." ( Id. at 5.) Rodriguez's choice of language is important because he is stating fairly clearly that he suffered no Sixth Amendment violation while housed in Western New York, and that the sole cause of his Sixth Amendment violation is the distance from his counsel in itself. Consequently, the sole issue that the Court needs to resolve appears to be whether remote detention of either 185 or 483 miles categorically infringes on Rodriguez's right to effective assistance of counsel.
Yet the Court must refine Rodriguez's issue a little further because of an important principle of judicial restraint that the parties have not addressed. "The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter." Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (citations omitted). When the Court issued its first order denying Rodriguez bail, it included the mandatory language from 18 U.S.C. § 3142(i)(3) requiring that "defendant shall be afforded reasonable opportunity for private consultation with counsel." (Dkt. No. 67 at 8.) The Court will spend some time in the sections below explaining what that mandate means. Any definition or explanation of Section 3142(i)(3), however, necessarily implicates the Sixth Amendment. The Sixth Amendment sets minimum standards for attorney conduct and strategy that potentially affects the outcome of a case. Section 3142(i)(3) reaches above minimum conduct affecting case outcomes and suggests how an attorney-client relationship ought to proceed leading up to trial-it assumes that the attorney and client will consult each other regularly and then mandates the removal of any impediment to "private" consultations that are qualitatively and quantitatively "reasonable." Consequently, compliance with Section 3142(i)(3) ...