U.S. v. Millan

• Decision Date: 01 September 1993
• Docket Number: D,Nos. 2093,2094,s. 2093
• Citation: 4 F.3d 1038
• Parties: UNITED STATES of America, Appellant, v. Eric MILLAN and Ralph Rivera, Defendants-Appellees. ocket 93-1449, 93-1470.
• Court: U.S. Court of Appeals — Second Circuit

Page 1038

4 F.3d 1038

UNITED STATES of America, Appellant, v. Eric MILLAN and Ralph Rivera, Defendants-Appellees.

Nos. 2093, 2094, Docket 93-1449, 93-1470.

United States Court of Appeals Second Circuit.

Argued July 15, 1993.

Decided Sept. 1, 1993.

Dietrich L. Snell, Asst. U.S. Atty. for the S.D.N.Y., New York City (Mary Jo White, U.S. Atty. for the S.D.N.Y., of counsel), for appellant.

Michael H. Gold, New York City (Hoffman & Pollok, Michael B. Pollack, of counsel), for defendant-appellee Millan.

David M. Richman, New York City, for defendant-appellee Rivera.

Before: MAHONEY, McLAUGHLIN, and JACOBS, Circuit Judges.

MAHONEY, Circuit Judge:

The United States appeals from orders dated May 21, 1993 and June 23, 1993 of the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge, that released Ralph Rivera and Eric Millan, respectively, from pretrial detention. The district court ruled regarding Rivera that "given the length of detention that has already occurred and the non-speculative estimates of future confinement, the Government's responsibility in delaying this trial and the facts concerning risk of flight and danger to the community, the Court finds that continued detention beyond twenty-two months exceeds due process." United States v. Rivera, No. S9 91 Cr. 685 (SWK), slip op. at 5 (S.D.N.Y. May 21, 1993). Similarly, with respect to Millan, the court concluded that: "Although ... the evidence presented supports Millan's continued detention on the grounds of risk of flight and dangerousness, ... due to delays occasioned by the Government, the length of Millan's pretrial detention has exceeded constitutional limits." United States v. Millan, 824 F.Supp. 38, 39 (S.D.N.Y.1993).

The government argues that the pretrial detention in this case, while lengthy, is not constitutionally excessive considering the defendants' responsibility for the delay, risk of flight, and dangerousness to the community. We agree, and therefore reverse.

Background

On August 1, 1991, Millan and Rivera were arrested and charged with participating in a conspiracy to distribute heroin. The government claims that Millan is the leader of an organization that distributes heroin under the brand name "Blue Thunder" in New York City, and that Rivera is Millan's "second-in-command," responsible, with another operative, for the day-to-day supervision of the organization's activities. Both are charged with violating a variety of laws, including the Continuing Criminal Enterprise statute, 21 U.S.C. Sec. 848 (1988), under which Millan, as a "principal administrator, organizer, or leader" of a continuing criminal enterprise, faces a mandatory life sentence, and Rivera faces a mandatory twenty-year sentence and a maximum sentence of life imprisonment. See Secs. 848(a)-(d).

Millan and Rivera have been detained at all times subsequent to their arrests. Millan, 824 F.Supp. at 39; Rivera, slip op. at 1. Magistrate Judge Michael H. Dolinger ordered Rivera detained as presenting a risk of flight after a detention hearing on August 6, 1991. Millan consented to pretrial detention at a hearing before Magistrate Judge Theodore H. Katz on August 13, 1991, upon the government's motion that he posed both a risk of flight and a danger to the community.

Millan did not thereafter seek bail prior to the application at issue on this appeal. Rivera, on the other hand, made two intervening bail applications after his initial detention hearing. On the first occasion, Judge Kram, to whom the case was assigned, referred the motion to Magistrate Judge Naomi R. Buchwald, who affirmed the original detention order on May 19, 1992. On the second, Magistrate Judge James C. Francis, IV denied Rivera's bail proposal on December 22, 1992, noting that Rivera had failed to identify any changed circumstances sufficient to warrant a departure from the findings underlying the initial detention order. Because Judge Kram was not available to hear his significantly delayed appeal of that determination, Rivera appealed Magistrate Judge Francis' decision to District Judge Sonia Sotomayor, who was then sitting in the district court's Part I (the miscellaneous docket part).

After a February 18, 1993 hearing, Judge Sotomayor concluded that the government had amply demonstrated that Rivera continued to constitute a risk of flight and a danger to the community. Judge Sotomayor found that: (1) Rivera was charged with a crime that required more than ten years imprisonment in the event of conviction; (2) with respect to each of three prior arrests, he had failed to appear in court, resulting in the issuance of bench warrants for his arrest; (3) Rivera no longer had significant ties to the community; (4) he had travelled abroad and had ties to communities outside New York City; and (5) as a result of his participation in the Blue Thunder organization, Rivera had access to sufficient money to facilitate flight and reimburse bail sureties should he decide to flee.

Opening statements in the trial of Millan, Rivera, and ten codefendants were made on March 9, 1993. On March 12, 1993, the prosecution advised Judge Kram that three agents involved in the investigation of this case had been arrested for narcotics trafficking. The court then adjourned the trial and held a hearing to determine the impact of this revelation upon the case. The court determined that the alleged misconduct by the arrested agents did not involve the investigation that resulted in the Millan indictment, see United States v. Millan, 817 F.Supp. 1072, 1078 (S.D.N.Y.1993); but that cross-examination by the defense concerning the arrests would be permitted in view of the government's references in its opening statement to the participation of one of the arrested agents, in an undercover capacity, in events underlying the Millan indictment. See id. at 1081-84.

On March 23, 1993, the prosecution advised Judge Kram that Millan's attorney, Michael B. Pollack, was about to be indicted on felony charges in the District of New Jersey. Although a colleague of Dietrich L. Snell, the government attorney in charge of this case, had known about the impending indictment as early as January 1993, he apparently neglected to inform Snell about this development until March. After being apprised of the conflict, which his attorney had not previously revealed to him, Millan announced his intention to retain new counsel and requested a severance from the ongoing trial. The court granted the severance application and declared a mistrial as to Millan, noting the government's concession that " 'timely disclosure of the conflict of Millan's counsel would have afforded Millan sufficient opportunity to select alternative counsel so that he could proceed to trial with other defendants.' " 817 F.Supp. at 1086 (quoting letter from Snell to Judge Kram (Mar. 24, 1993), at 3). Millan subsequently decided, however, to continue with Pollack, and only to seek new counsel if necessary. Millan, 824 F.Supp. at 46 n. 5. Pollack was convicted on July 15, 1993.

On April 14, 1993, the court learned that between $50,000 and $80,000 that had been seized in the course of the arrest of one of the defendants in this case by one of the suspect agents was missing. In light of this evidence of misconduct directly relating to the Millan investigation, Millan, Rivera, and most of their codefendants moved for a mistrial. See United States v. Millan, 817 F.Supp. 1086, 1088 (S.D.N.Y.1993). Concerned that "the entire vouchering process in this case is now suspect," id. at 1089, and troubled by the possibility that further allegations of misconduct might be forthcoming, see id., the district court granted defendants' motion for a mistrial on April 16, 1993. See id. at 1090. Millan, Rivera, and their codefendants then moved to bar any retrial on grounds of double jeopardy.

Millan and Rivera separately petitioned the district court to be released on bail pending retrial, each contending that his continued detention constituted punishment in violation of the Due Process Clause of the Fifth Amendment. As previously indicated, the court concluded in separate opinions that with regard to each defendant the period of pretrial delay exceeded constitutional limits. Judge Kram ruled on Rivera's application without any separate proceeding before a magistrate. The ruling on Millan was preceded by a recommendation of Magistrate Judge Katz that Millan be released; that recommendation was in turn "informed and assisted" by Judge Kram's preceding decision to release Rivera.

Accordingly, on May 21, 1993, Judge Kram ordered Rivera released on condition that he: (1) post a $1,000,000 personal recognizance bond secured by $500,000 in real property and the signatures of six financially responsible individuals; (2) not associate or communicate with any of his codefendants except as necessary to prepare his defense; (3) not commit any crimes; (4) report weekly by telephone to pretrial services; (5) submit to home detention and electronic monitoring; (6) submit to weekly drug testing; and (7) surrender his passport and all other travel documents. Rivera, slip. op. at 5.

Similarly, on June 23, 1993, the court ordered Millan released on condition that he: (1) post a $1,000,000 personal recognizance bond secured by $500,000 in real property and $100,000 cash and the signatures of six financially responsible individuals, including at least two family members; (2) not associate or communicate with any of his codefendants except in the presence of his lawyer to prepare his defense; (3) not commit any crimes; (4) report daily by telephone to pretrial services; (5) report weekly in person to pretrial services; (6) submit to home detention at the residence of his common-law wife and to electronic monitoring; and (7) surrender his passport and all other travel documents. Millan, 824 F.Supp. at 45-46. It was also required that his common-law wife surrender her...