United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court is the Government's appeal of Magistrate Judge H. Kenneth Schroeder, Jr.'s August 6, 2014 Release Order as to defendant Juan Torres. For the reasons explained below, the Government's motion is granted and the Release Order is revoked.
RELEVANT FACTS AND PRIOR PROCEEDINGS
On April 28, 2011, defendant Torres, along with 18 others, was named in a 36-count Indictment. Therein, defendant Torres was charged specifically with: (1) the murder of Eric Morrow in aid of racketeering (18 U.S.C. §1959(a)(1) and (2)); (2) discharging a firearm in furtherance of a crime of violence (18 U.S.C. §924(c)(1)(A)(iii), 924(j) and (2)); (3) conspiracy to distribute heroin and marijuana (21 U.S.C. §846); and (4) possessing firearms in furtherance of a drug trafficking crime (18 U.S.C. §846). The Indictment was later superseded to include allegations of RICO conspiracy (18 U.S.C. 1962(d)) against defendant Torres and others. In sum, the Superseding Indictment alleges that defendant was part of the 7th Street Gang, which, along with rival the 10th Street Gang, engaged in murders, shootings, assaults, robberies and narcotics trafficking on the West Side of Buffalo for nearly a decade.
Following a hearing on May 19, 2011, Magistrate Judge Schroeder ordered defendant Torres detained pending trial. On August 23, 2011, the Government disclosed that it would not seek the death penalty against any defendants in the case, including defendant Torres. Following arraignment on the Superseding Indictment, Magistrate Judge Schroeder ordered that all pretrial motions were to be filed by December 7, 2012. After at least three extensions of time were requested by co-defendants and granted by the Magistrate Judge, the deadline for filing pretrial motions was ultimately extended until May 31, 2013. On that date, defendant Torres filed a motion seeking suppression of statements and evidence as well as discovery and a bill of particulars. In July 2014, Magistrate Judge Schroeder issued a Report and Recommendation and a Decision and Order as to defendant Torres' motions, along with various other Reports, Recommendations and Orders as to motions by co-defendants.
Defendant Torres has not filed any objections or an appeal of the Magistrate Judge's rulings. However, co-defendants' objections to various rulings and recommendations made by Magistrate Judge Schroeder are currently pending before this Court.
On July 14, 2014, defendant Torres filed a motion seeking reconsideration of his detention status. Magistrate Judge Schroeder heard argument from the parties on August 16, 2014, after which he rendered an oral decision granting defendant's release. In support of his determination, the Magistrate Judge found that the length of defendant's pretrial detention violated due process. He also recognized defendant's lack of criminal history. The Magistrate Judge stayed defendant's release order to allow the Government to appeal, and the instant motion followed. Oral argument was heard before this Court on October 24, 2014.
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). In addition, the Second Circuit has held that "the 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). However, due process places limits on 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.")
In order to determine whether the length of pretrial detention has become constitutionally excessive, the Court is to consider the following: "(1) the length of detention; (2) the extent of the prosecution's responsibility for the delay of the trial; and (3) the gravity of the charges and the strength of the evidence upon which the detention was based." Millan, 4 F.3d at 1043; United States v. El-Gabrowny, 35 F.3d 63, 65 (2d. Cir. 1994). In addition, if a defendant is ordered released on bail, the Government may file, with the district court, "a motion for revocation or amendment of the order." See 18 U.S.C. §3145(a). An appeal of a detention order is to be reviewed using a de novo standard. United States v. Leon, 766 F.2d 77, 80 (2d. Cir. 1985). The Court has conducted a de novo review of the factors set forth in Millan as they apply to this case, and finds that defendant's continued detention does not violate his due process rights at this time.
Length of Detention
Defendant Torres has been detained for approximately 42 months awaiting trial. The Government concedes that it could be an additional 9 months before the case is tried and a verdict is reached. Indeed, the Second Circuit has held, in certain circumstances, that periods of pretrial detention 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 a 40 month period of 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 (holding that a 30 to 33 month pretrial detention did not violate defendant's due process rights); United States v. Millan, 4 F.3d 1038 (2d. Cir. 1993) (30 month detention did not violate due process). Here, defendant Torres has been detained for over 40 months, and his total detention time may reach or exceed 50 months, depending upon when the case is tried or otherwise reaches resolution. The Court recognizes that this is an extraordinarily long amount of time to remain in pretrial detention. Further, it is beyond prolonged periods of incarceration upheld by the Second Circuit. Therefore, the length of defendant Torres' pretrial detention weighs strongly in favor of his motion for release.
Defendant argues that the length of his incarceration alone violates his due process rights, and therefore is sufficient to require his release. The Court disagrees. The Second Circuit has held that "given the multi-factor test...the length of a detention period will rarely by itself offend due process." United States v. Orena, 986 F.2d 628, 631 (2d. Cir. 1993) ("no particular time period marks the constitutional limit of pretrial detention; each case must be examined on its own facts"). The Second Circuit has not identified any particular time period of pretrial detention as, on its own, a violation of defendant's due process rights. While defendant has reached the limits of what the Second Circuit has previously considered, and affirmed, as acceptable periods of pretrial detention, the Court finds that this alone does not negate consideration of the additional factors set forth in Millan. The Court is mindful of the extensive period of detention involved here. However, the case is quickly approaching trial and defendant has been incarcerated for approximately 42 months, which is only slightly longer than the 40 month period of detention previously ...