United States District Court, W.D. New York
DECISION AND ORDER
HUGH B. SCOTT, Magistrate Judge.
I. INTRODUCTION AND BACKGROUND
What should this Court do to manage the emerging issue of remote detention? Pretrial defendants who are ordered detained are winding up housed 100, 200, or even 400-plus miles from the courthouse in downtown Buffalo, New York. Remote detention is happening partly because of the Court's growing caseload and partly because the Western District of New York lacks a federal pretrial detention facility. In the specific instance of defendant Daniel Rodriguez ("Rodriguez"), remote detention is happening also because Rodriguez has been expelled from at least one nearby jail, the Niagara County Jail. Whatever the reasons why remote detention is happening, it is affecting defense attorneys' ability to meet with their clients compared to visiting them downtown or in a neighboring county.
What should the Court do? In this Decision and Order, the Court will try again to answer that question in response to Rodriguez's latest bail motion.
On June 25, 2014, Rodriguez filed a bail motion (Dkt. No. 135) asking for a declaration that his detention at the Northern Regional Jail in Warsaw, Virginia, approximately 483 miles by road from downtown Buffalo, violated his Sixth Amendment right to effective assistance of counsel. In a Decision and Order issued on August 18, 2014, the Court resolved Rodriguez's motion on statutory grounds, under 18 U.S.C. § 3142(i)(3). (Dkt. No. 147, available at 2014 WL 4094561.) Section 3142(i)(3) mandates that any defendant ordered detained "be afforded reasonable opportunity for private consultation with counsel." The Court discussed several factors that would affect whether Rodriguez indeed had a reasonable opportunity for private consultation with his counsel. Applying those factors, the Court decided that it needed more information about the circumstances of Rodriguez's remote detention before it could determine whether the Government had been complying with Section 3142(i)(3). The Court denied Rodriguez's motion, but without prejudice to renew it after 60 days with a more developed record.
Rodriguez filed a new motion-the pending motion-on February 12, 2015. (Dkt. No. 172.) Rodriguez again seeks an order directing the United States Marshals Service ("USMS") to transfer him to a local jail. Rodriguez does not cite the Court's prior decision and does not cite Section 3142(i)(3). Rodriguez does not cite his prior expulsion from the Niagara County Jail. Rodriguez also acknowledges that the Government now is housing him at the Steuben County Jail, a state detention facility within the geographical boundaries of the District and about 105 miles from downtown Buffalo. Nonetheless, Rodriguez returns to the constitutional arguments that he raised in his first motion. Specifically, Rodriguez contends that "his participation in discovery review and further motion practice has been wholly curtailed." (Dkt. No. 173 at 3.) Rodriguez's counsel would have to spend about four hours round-trip to visit him, a time commitment that "has created an immediate violation of his Sixth Amendment right to the effective assistance of counsel." ( Id. at 4.) Rodriguez concludes that he needs housing in "a local jail closer to his attorneys and the court in Buffalo, New York to ensure adequate accessibility in the critical stages of preparation for trial." ( Id. ) Rodriguez feels some urgency in renewing his motion for relocation because the Government filed a superseding indictment on December 12, 2014. (Dkt. No. 155.) All parties in the case have stated that they already have all discovery pertaining to the new indictment. Still, the superseding indictment expanded the case from one Hobbs Act conspiracy among three defendants to two Hobbs Act conspiracies involving five defendants, with kidnapping and murder-related gun counts included. Motions addressing the superseding indictment currently are due on April 1, 2015.
The Government opposes Rodriguez's motion as too categorical. Rodriguez has been housed at the Steuben County Jail since July 23, 2014. Rodriguez's counsel last visited him on June 6, 2013, when he still was housed at the Niagara County Jail. Counsel thus have not visited Rodriguez for almost two years, and the Government complains that the lack of diligence in not visiting Rodriguez undermines the pending motion. The Government emphasizes that Steuben County Jail has the capability for pre-arranged, private telephone calls and delivery of documents by United States Postal Service or private carrier. The Government also notes that Rodriguez has an extensive criminal history and history of misconduct while in custody. The parties have not provided details of this misconduct, but the United States Probation Office ("USPO") advised the Court at the last bail review hearing that Rodriguez assaulted a Steuben County corrections officer as recently as a few weeks ago. The Government urges the Court not to ignore all of this context, or else it will create a per se rule against remote detention based on distance alone. A per se rule, according to the Government, would infringe on the Department of Justice's authority to manage the housing of defendants ordered detained. Such a rule also would reward Rodriguez for getting himself expelled from the kind of nearby facility that he now seeks.
The Court held a bail review hearing on March 4, 2015. For the reasons below, the Court grants Rodriguez's motion in part to permit limited transport to the courthouse in connection with major proceedings that will occur in the case. The Court denies the motion in all other respects.
A. Applying Section 3142(i)(3)
As it did in its prior decision, the Court will assess Rodriguez's motion on statutory grounds rather than constitutional grounds. "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) virtually guarantees compliance with the Sixth Amendment, so long as an adequately skilled attorney works in good faith to stay in touch with a client and to solicit the client's input regarding trial strategy." Dkt. No. 147, 2014 WL 4094561, at *4; see also Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995) ("Section 3142(i)(3) is designed to protect a defendant's Sixth Amendment right to counsel, and if that right is being infringed, [the Court] has the statutory authority to protect [defendant's] access to counsel."). Under Section 3142(i)(3), a "reasonable opportunity" for consultation with counsel "would have to allow defendants to review discovery that the Government intends to introduce at trial and to plan non-frivolous motions and other strategies. The opportunity would account for defendants' criminal histories, behavior reports, medical conditions, and similar logistical problems that have a direct impact on setting up attorney-client meetings. Finally, the opportunity would not unnecessarily create different tiers of attorney-client relationships. Any logistical problem that raises the barrier to attorney-client communication will, over time, make a relationship with that problem different than a relationship without it. An opportunity for consultation may nonetheless be reasonable if a fair consideration of all circumstances requires an alteration in the attorney-client relationship that is proportional to the severity of the logistical problem." Dkt. No. 147, 2014 WL 4094561, at *6 (citations omitted). Consultation with counsel under Section 3142(i)(3) also must be "private." "Whether in person, by mail, by telephone, or through a video conference, a private consultation with counsel' consists of a communication between only a defendant and the defendant's attorney of record that preserves ethical obligations of confidentiality and carries no risk of a waiver of attorneyclient privilege. Such a consultation also would comply with all applicable regulations governing the management of pretrial detainees." Id. at *8.
In trying to apply the above principles, the Court still lacks details about facility policies and practices, and about Rodriguez's behavior reports and communications with counsel. The new information that the Court has acquired, however, does not make it any more inclined to grant bail or to intervene in the daily management of Rodriguez's detention. As noted above, the USPO has reported that Rodriguez assaulted a corrections officer recently at the Steuben County Jail. Whatever the details, Rodriguez has not disputed that something happened, and any sort of assault is an example of the sort of logistical problem that warrants a reasonable imposition on an attorney-client relationship. The Court also learned through the motion papers and at the bail review hearing that Rodriguez's counsel have not visited him since June 6, 2013. The Court learned further that counsel do not use telephone conferences, for fear that the facility records them, and appear to make limited use of mail deliveries. The Court does not necessarily disagree with two distinguished attorneys about the inconvenience of visiting Rodriguez in Steuben County, though it does lie within the District. The entire trip likely takes most of a day, between the drive there, any meeting itself, and the drive back. Setting up telephone or video conferences and arranging mailings of discovery take extra time and advance planning. "The Court regrets that this arrangement will require more work for defense counsel, but the standard imposed by the statute is one of necessity, not convenience." U.S. v. Bolze, No. 3:09-CR-93, 2010 WL 199978, at *2 (E.D. Tenn. Jan. 13, 2010); see also U.S. v. Acevedo-Ramos, 600 F.Supp. 501, 507 (D.P.R. 1984) (rejecting an assertion that pretrial detention interferes with pretrial preparation where "defendant, by counsel's own admission, has been able to consult with his attorneys"). The District's Criminal Justice Act ("CJA") administrative procedures allow counsel to receive compensation for travel time to and from detention facilities. With respect to telephone conferences, detention facilities simply are not permitted to compromise attorney-client confidentiality. At a minimum, protecting confidentiality means that any recordings of attorneyclient telephone and video conferences, if they must be made at all, are permitted for internal security purposes only and must never be disclosed or used for any other purpose without further order of the Court. See 28 C.F.R. § 540.102 ("Staff may not monitor an inmate's properly placed call to an attorney. The Warden shall notify an inmate of the proper procedures to have an unmonitored telephone conversation with an attorney."); U.S. v. Janis, 820 F.Supp. 512, 517-18 (S.D. Cal. 1992) ("In order to effectively represent himself, Janis must also be able to communicate confidentially with his investigator. The court orders that the [jail] allow Janis to conduct private, in-person consultations with his attorneys in all pending litigation and with the court appointed investigator working on the criminal case pending in this district. The [jail] is further ordered not to disclose the contents of any taped or recorded telephone conversation between Janis and his attorneys, investigators or witnesses without further order of the court. The [jail] may disclose the conversations internally, only if necessary, for security of the institution."). The Court invites counsel to apply as needed for orders directing the protection of confidentiality for specific telephone or video conferences that they may schedule.
Between mailings and telephone or video conferences for lesser communications, and counsel's jail visits for more important communications, Rodriguez will receive a reasonable opportunity for private consultation with counsel. To declare otherwise would risk rewarding Rodriguez for behavioral problems that exhausted his options at closer facilities. Declaring otherwise comes too close to enacting a rule that distance alone, without any context, can establish a statutory violation. The Court will not enact such a rule. Under ...