U.S.A v. English, Docket No. 10-3258-cr

• Decision Date: 20 January 2011
• Docket Number: Docket No. 10-3258-cr,Docket No. 10-4045-cr
• Parties: UNITED STATES OF AMERICA, Appellee, v. DEREK ANDRE ENGLISH and RONALD ANDERSON, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

UNITED STATES OF AMERICA, Appellee, v. DEREK ANDRE ENGLISH and RONALD ANDERSON, Defendants-Appellees.

Docket No. 10-3258-cr

Docket No. 10-4045-cr

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2010

Argued: January 4, 2011

Decided: January 20, 2011

Before: KEARSE, WINTER, and HALL, Circuit Judges.

Appeals from orders of the United States District Court for the Southern District of New York, Colleen McMahon, Judge, denying defendants' motions for bail pending trial, and ordering their pretrial detention pursuant to 18 U.S.C. § 3142 on grounds of risk of flight and danger to the community.

Affirmed.

SANTOSH ARAVIND, Assistant United States Attorney for the Southern District of New York, New York, New York, for Appellee.

RICHARD B. LIND, New York, New York, for Defendant-Appellant English.

RONALD RUBINSTEIN, New York, New York (Rubinstein & Corozzo, New York, New York, of counsel), for Defendant-Appellant Anderson.

KEARSE, Circuit Judge:

Defendants Derek Andre English and Ronald Anderson, who have been indicted on charges of conspiring to traffic in cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and engaging in firearms offenses, in violation of 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(i), and 2, appeal from orders entered in the United States District Court for the Southern District of New York by Colleen McMahon, Judge, to whom their case is assigned, denying their applications for bail pending trial and ordering their pretrial detention pursuant to 18 U.S.C. § 3142(e) on grounds of risk of flight and danger to the community. Following their arrests but prior to the filing of the indictment and the assignment of the case to Judge McMahon, defendants had unsuccessfully applied for bail before a magistrate judge and had appealed the denial to District Judge Lawrence M. McKenna, who was then sitting as the "Part I" judge for, inter alia, certain emergency matters and preliminary criminal proceedings, see S.D.N.Y. Local Rules 3, 7 (a)-(b); Judge McKenna denied their motions, finding that although the combinations of bail conditions proposed by English and Anderson, respectively, were sufficient to assure their future court appearances as required, a firearm that defendants had possessed persuaded him that these defendants posed danger to the community. In challenging the orders of Judge McMahon, English and Anderson contend principally that the judge was predisposed against their bail applications, that she impermissibly revisited Judge McKenna's finding that they posed norisk of flight, and that they should be released in light of new information bearing on Judge McKenna's danger-based denial of their bail motions. Finding no merit in defendants' contentions, we affirm the orders of the district court.

I. BACKGROUND

All of the events described below occurred in 2010 unless otherwise noted. English and Anderson were arrested on April 28 by Drug Enforcement Administration ("DEA") agents investigating a drug-trafficking organization. According to the complaint filed on April 29 ("Complaint"), the events of April 28 included the following. DEA agents intercepted a Federal Express package containing approximately five kilograms of cocaine; the person who attempted to collect the package was arrested and agreed to become a cooperating witness ("CW"). (See Complaint ¶¶ 6-7.) Acting on information provided by the CW, the agents seized from a car belonging to one Rodney Johnson another package containing five kilograms of cocaine and a gun in a hidden compartment. (See id. ¶¶ 8(a), 10.) DEA agents also conducted surveillance of a Queens, New York, house that the CW described as a stash house for drugs, money from drug sales, and guns. (See id. ¶ 8(b).) The agents observed English, Anderson, and Johnson arrive and enter the house; when English exited carrying a bag and began to drive away, he was stopped and arrested; the bag was found to contain approximately 10 kilograms of cocaine. (See id. ¶¶11(a)-(c).)

After arresting English, the agents arrested Anderson and Johnson. In subsequently executing a search warrant for the house, the agents found, inter alia," (1) two kilograms of a substance that appeared to be cocaine in the kitchen; (2) an undetermined quantity of money in the living room; [and] (3) a firearm that appears to be a machine gun with what appears to be a silencer in the hallway closet." (Id. ¶¶ 11(d)-(e).)

On April 29, English and Anderson were presented before Magistrate Judge Kevin N. Fox and moved to be released on bail. The Assistant United States Attorney ("AUSA") opposed the motions and asked that defendants be detained on the grounds that they were flight risks and posed a significant danger to the community. By letter dated May 3, 2010, the government reiterated the main allegations of the Complaint, including that the agents had found in the stash house what appeared to be a machine gun, and added, inter alia, that

[b]oth defendant[]s have significant criminal histories, including prior narcotics felonies. Specifically, English was sentenced to a term of 10 years' imprisonment for conspiracy to traffic in cocaine and Anderson was sentenced to a term of 28 months' to 7 years' imprisonment for criminal possession of a controlled substance in the fifth degree. As a result, both defendants are facing 20[-]year mandatory minimums pursuant to 21 U.S.C. § 841(b)(1)(A). The substantial prison sentence faced by these defendants provides a considerable incentive to flee. Multiple orders of protection have been filed against Anderson, including at least one currently active such order. As memorialized in the Pretrial Services report, English tested positive for marijuana on the day he was presented on the instant charge.

(Letter from AUSA Michelle K. Parikh to Magistrate Judge Fox dated May 3, 2010, at 3-4.) At the May 4 hearing on the motions, the government also stated, inter alia, that the stash house was leased in Anderson's name and that the landlord had seen Anderson there on several occasions (see Joint Hearing Transcript, May 4, 2010 ("May 4 Tr."), at 4); that when he was arrested, Anderson "was running from the location" (id. at 5); that the search of the house revealed not only the gun and silencer, but also ammunition (see id. at 4); and that "both of these defendants have been linked through numerous sources of the DEA to a much larger narcotics conspiracy" and "have also been linked to violent activity as part of that conspiracy" (id. at 6).

The magistrate judge denied the bail motions. Although finding that both defendants had rebutted the statutory presumption of flight risk, see 18 U.S.C. §§ 3142(e), (f)(1), he concluded that in light of the large quantity of cocaine involved, the sophistication of defendants' narcotics operation, and the weapon recovered from the stash house, defendants posed a danger to the community. (See May 4 Tr. 25-27.)

A. The Proceedings Before Judge McKenna

English and Anderson appealed, and their motions came before Judge McKenna as the Part I judge on May 5. The court indicated that it was particularly concerned about the gun found in the stash house. (See Joint Hearing Transcript, May 5, 2010 ("May 5 Tr."), at 5.) English's attorney argued principally thatthere was no evidence that English had been to the closet in which the gun was found; Anderson's attorney argued principally that Anderson was unarmed when arrested and that, although he leased the house, none of his personal belongings were on the premises. (See id. at 6, 16-18.) The government responded principally that it was highly unlikely that English and Anderson, handling large quantities of narcotics in the house, did not know that a machine gun, silencer, and ammunition were there. (See id. at 19.)

In response to an inquiry from the court as to why the government's letter to the magistrate judge said that the weapon found in the closet merely "appear [ed]" to be a machine gun, the AUSA stated that

the events were developing rapidly. The agent who was swearing out the complaint had not actually seen the firearm in question. The agents who had seized it identified it as a machine gun but had not had an opportunity to test it. And so in an abundance of caution, in the event that maybe it was semiautomatic as opposed to a machine gun, a fully automatic machine gun, I characteri zed it as a weapon that was--that appeared to be a machine gun....

Your Honor, I understand from both agents that they have since confirmed that the gun is a MAC 11 and that is a fully automatic firearm.

(May 5 Tr. 20-21.)

After hearing additional argument, Judge McKenna stated that he viewed it as an extremely close case but concluded that the detention orders should not be disturbed. He found that the bail packages proposed by defendants were sufficiently substantial to ensure "that these defendants would be available when needed in court." (Id. at 33.) However, he found that, inlight of the gun found in the stash house, defendants posed a danger to the community. The court felt there was little or no

danger of continued drug selling. I have the feeling that the bail packages would deal with that. Home confinement would deal with that. Maybe the recognition that to be caught doing even tiniest bit of drug dealing while you're under an indictment with a multi [-] kilo case might not be the smartest thing in the world to do, it might end up in front of the jury with the rest of it, would probably prevent that.

Now my experience is that most people arrested and on bail for drug offenses do not, while they're on bail pending trial, continue dealing drugs....

....

The gun is the problem, in my view. From the gun you can certainly draw an inference of, somebody who possess [es] a gun--and I haven't heard anybody suggest this gun was legally possessed or it was a licensed weapon--you can always infer that the person who possesses a gun is prepared to use it for his benefit. I am aware that from many

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