U.S. v. Orena, 739

Citation986 F.2d 628
Decision Date19 January 1993
Docket NumberNo. 739,D,739
PartiesUNITED STATES of America, Appellant, v. Victor J. ORENA and Pasquale Amato, Defendants-Appellees. ocket 92-1595.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

John Gleeson, Asst. U.S. Atty., Brooklyn, NY (Andrew J. Maloney, U.S. Atty., E.D.N.Y., George A. Stamboulidis, Andrew Weissmann, Asst. U.S. Attys., Brooklyn, NY, of counsel), for appellant.

Gustave H. Newman, New York City, for defendant-appellee Victor J. Orena.

Benjamin Brafman, New York City, for defendant-appellee Pasquale Amato.

Before: MESKILL, Chief Judge, WINTER, Circuit Judge, and RESTANI, Judge. *

WINTER, Circuit Judge:

The government appeals from Judge Weinstein's orders releasing Victor J. Orena and Pasquale Amato from pretrial detention. They face RICO charges based on predicate acts of murder, conspiracy to murder, loansharking, and illegal possession of weapons. Their releases were stayed pending this appeal. Orena's trial began on November 19, 1992, and he was convicted on December 21. Accordingly, as to Orena, this appeal is moot. Amato's trial, however, is under way. The government argues that delays in the trial dates do not warrant the release of Amato and that the conditions of bail do not ensure the

                safety of the community.   We agree and reverse
                
BACKGROUND

Orena and Amato were originally indicted in their alleged capacities as Acting Boss and captain, respectively, in the Colombo Family of La Cosa Nostra, an "enterprise" under RICO. The predicate acts were conspiring to murder, and murdering, Thomas Ocera. Amato was further charged with being a convicted felon in possession of a firearm.

The indictment alleged that Orena was named Acting Boss of the Colombo Crime Family after the 1986 imprisonment of its then Boss, Carmine Persico. Persico came to hope that his son, Alphonse, would assume control of the Family upon Alphonse's scheduled release from prison in 1993. Orena, however, desired to become the official Boss, and a violent war erupted between the Persico and Orena factions. An estimated twenty shootings took place between November 1991 and April 1992 that resulted in the death of eight persons, some of them innocent bystanders. Orena and Amato were arrested in April 1992. At the time of their arrests, arms were found in their respective residences. The war appears to have subsided thereafter, although the government states in its brief that a war related killing occurred on October 7, 1992.

At a detention hearing on April 6, 1992, evidence was introduced to demonstrate that Orena and Amato played supervisory roles in the Colombo Family criminal enterprise and in its use of violence. Evidence showed that Orena was a leader in the fratricidal war and that plans for further killings existed. Judge Glasser found that Orena and Amato were dangers to the community and that Amato was a flight risk. Judge Glasser rejected Orena's argument that house-arrest, electronic surveillance, and a bail package that included the property of family members as security would insure the community's safety. He denied bail and ordered appellees detained pending trial.

A superseding indictment added a defendant from the Persico faction, Michael Sessa, and broadened the charges against Orena and Amato. The racketeering acts alleged against Amato included the Ocera murder, conspiring to engage in loansharking and, as to Orena, conspiring to murder members of the Persico faction of the Colombo Family as part of the fratricidal war. Orena was charged with using and carrying firearms during and in relation to a violent crime. The indictment also alleged that Orena appointed Amato Acting Underboss of the Family for about six months in 1990. Trial was set for September 14, 1992.

In August, due to Judge Glasser's crowded docket, the case was transferred to Judge Weinstein for a trial to begin on October 5, 1992. Although Judge Weinstein was willing to accelerate the trial date to September 14, all counsel opposed the earlier date. The government, due to the illness of the lead prosecutor, requested that the trial date be moved to October 19.

On September 14, Judge Weinstein ordered that the Orena faction defendants, Orena and Amato, be tried separately from the Persico faction defendant, Michael Sessa, added in the superseding indictment. The government requested that Sessa's trial be scheduled first. Sessa's trial was set for October 5. The district court subsequently granted Sessa's request for an adjournment to October 26. The trial date for Orena and Amato was then set for November 16.

At an October 9, 1992 status conference, counsel for Orena and Amato complained that the government had delayed the beginning of their trial. However, Judge Weinstein found that "[a] realistic reading of the total record will show the defendants have, up to this point, not been anxious to push the case any more than the government."

Counsel also made oral applications for bail at the status conference. Judge Weinstein ruled that the November 16 trial date was a "new circumstance" warranting release. When the government argued that the appellees were dangers to the community Subsequent to granting bail, Judge Weinstein severed Amato's case and set a trial date for the conclusion of Orena's trial. Judge Weinstein indicated he might transfer Amato's case to another judge should further delay be foreseen. There has been, however, no unforseen delay. Orena's trial began on November 19, 1992, and he was convicted on all counts on December 21, 1992. Amato's trial began on January 11, 1993.

                and attempted to detail the number of deaths caused by the fratricidal war, Judge Weinstein responded by stating that "[i]f the war heats up you can come in again."   When the government replied that "[i]t may be too late for the victims if the war heats up," Judge Weinstein responded, "The likelihood is that the victims will be part of the gang.   It is true that these gangs have become much less efficient.   Some of them can hardly shoot straight, but I don't believe that there's a substantial risk to the population."   Judge Weinstein then admitted Orena and Amato to bail, finding that they were not flight risks and that, given certain restrictive conditions of bail, they were not dangers to the community.   The terms of bail were as follows:  bail ($3 million for Orena, $1 million for Amato) was secured by family members' residences and property;  Orena and Amato were confined to their homes except for visits to their attorneys;  visitors were restricted to immediate family;  phone calls were restricted to attorneys;  the government was allowed to install a device to monitor calls;  Orena and Amato were compelled to wear an electronic bracelet and to call pretrial services once a day;  and, finally, they consented to having their homes searched by the government at any time
                
DISCUSSION

We do not agree that the postponement of trial dates constitutes a new circumstance justifying release under the Bail Reform Act. Even if defense counsel had sought an early trial date, which they explicitly did not, there is no statutory basis for the conclusion that the length of a pretrial detention warrants the granting of bail where there has been a finding of danger to the community. To the contrary, Congress rejected any specific time limit under the Bail Reform Act for detention pending trial, relying instead upon the Speedy Trial Act. United States v. Colombo, 777 F.2d 96, 100-01 (2d Cir.1985).

The length of a defendant's pretrial detention may, of course, be challenged under the Due Process Clause. However, "the due process limit on the duration of preventive detention 'requires assessment on a case-by-case basis, since due process does not necessarily set a bright line limit for length of pretrial confinement.' " United States v. Gonzales Claudio, 806 F.2d 334, 340 (2d Cir.) (quoting United States v. Salerno, 794 F.2d 64, 78-79 (2d Cir.1986) (Feinberg, C.J., dissenting), rev'd, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)), cert. dismissed sub nom. Melendez-Carrion v. United States, 479 U.S. 978, 107 S.Ct. 562, 93 L.Ed.2d 568 (1986). To determine whether the length of a pretrial detention violates a defendant's due process rights, we must weigh: (i) the length of detention; (ii) the extent of the prosecution's responsibility for the delay of the trial; and (iii) the strength of the evidence upon which the detention was based, in this case, evidence of Amato's danger to the community. Id.; see also United States v. Ojeda Rios, 846 F.2d 167, 169 (2d Cir.1988) (applying the test to risk of flight); United States v. Gotti, 776 F.Supp. 666, 671 (E.D.N.Y.1991) (applying the test to dangerousness).

Applying these standards, we first find that the length of detention has not exceeded allowable limits. Accordingly, counting the time of relevant pretrial detention as beginning on April 1 (although Orena and Amato waived their speedy trial rights until at least April 17), the date of their arrest, until the beginning of trial, January 11, the total period for Amato is approximately nine months. We have expressly held that a slightly lesser period, in and of itself, does not violate due process. See, e.g., United States v. Berrios-Berrios, 791 F.2d 246, 251-52 (2d Cir.) (eight months detention for risk of flight not violative of Due Process Clause), cert. dismissed, 479 U.S. 978, 107 S.Ct. 562, 93 L.Ed.2d 568 (1986). 1

We also note that given the multi-factor test of Gonzales Claudio, the length of a detention period will rarely by itself offend due process. Moreover, the constitutional limits on a detention period based on dangerousness to the community may be looser than the limits on a detention period based solely on risk of flight. In the former case, release risks injury to others, while in the latter case, release risks only the loss of a conviction. We find that the length of detention...

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