USA v. Busch et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v. ORDER
09-CR-331-A
DAVID DEYNES,
Defendant.
The defendant, David Deynes, has moved pursuant to 18 U.S.C. §
3142(f)(2), based upon changed circumstances, for reconsideration of a March
15, 2012 Decision and Order of Magistrate Judge Hugh B. Scott that denied a
motion for release from pretrial detention. (Dkt. No. 470). The Court assumes
familiarity with the racketeering-related charges defendant Deynes faces, the
prior proceedings in this case, and the arguments of the parties.
As a threshold matter, the United States argues that defendant Deynes’
emphasis on his interpretation of evidence and on witness statements he has
received during pretrial proceedings to argue that the evidence against him is not
as strong as previously proffered by the United States is not sufficient to justify re-
opening the detention hearing under § 3142(f)(2). However, the Court finds that
the availability of property valued at approximately $85,000 as newly-available
potential security for defendant Deynes’ pretrial release, and the passage of an
additional 20 months during which defendant has been detained pretrial, are
circumstances clearly sufficient under 18 U.S.C. § 3142(f) to justify re-opening
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the detention hearing.
Based upon consideration of all of the factors in 18 U.S.C. § 3142(g) and
the evidence proffered by the United States and defendant Deynes, the Court
finds that there is a strong basis for concluding that defendant committed the very
serious offenses charged in Counts 1, 62, and 63 in the Fourth Superseding
Indictment. The circumstances and characteristics of those offenses, together
with the history and characteristics of defendant, strongly support the conclusion
that defendant has not met his burden to overcome the presumptions of
dangerousness and serious risk of flight that arise under 18 U.S.C. § 3142(e)(2),
and the proffered evidence supporting those presumptions. The Court also
specifically finds that no available condition or combination of conditions will
adequately protect the safety of the community from the defendant.
Although it was not the primary focus of oral argument, the Court has very
carefully considered that defendant Deynes’ continuing 31-month pretrial
detention raises distinct and troubling questions under the Due Process Clause
about the propriety of his continuing detention without trial. See U.S. Const.
amend. V. When the duration of a defendant’s pretrial detention becomes so
prolonged that it amounts to punishment that does not serve purposes of flight
prevention or community protection, the pretrial detention violates due process.
Bell v. Wolfish, 441 U.S. 520, 535 (1979); United States v. Salerno, 481 U.S. 739,
747-49 (1987); United States v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993). Upon
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such violation, a defendant will be released on conditions, ordered to trial, or
both.
There is generally a three-part test for determining when an otherwise
legitimate pretrial detention becomes too long to be tolerated under the Due
Process Clause: (1) the length of delay; (2) the extent to which the prosecution is
responsible for delay of the start of the trial; and (3) “the strength of the evidence
upon which the detention was based.” United States v. Orena, 986 F.2d 628,
630 (2d Cir. 1993). The question whether the pretrial detention of defendant
Deynes violates due process turns on whether the above-listed factors establish
that the duration of his detention is excessive in relation to the non-punitive
purposes served by the detention. Bell v. Wolfish, 441 U.S. 520, 538 (1979).
After long and involved pretrial proceedings, defendant Deynes is
scheduled for jury selection and trial on February 6, 2014. Because the
defendant’s pretrial detention continues to be necessary to protect the community
from additional crimes and to prevent the defendant from fleeing to avoid
conviction, a sentence to a mandatory-minimum term of 10 years imprisonment,
up to a sentence of life imprisonment, and because his trial will begin February 6,
2013, it does not, at this time, violate due process.
CONCLUSION
For all of the foregoing reasons, the motion of defendant David Deynes for
reconsideration pursuant to 18 U.S.C. § 3142(f)(2) of his pretrial detention is
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denied. The defendant is a danger to the community and a risk of flight for which
no available conditions or combination of conditions of release will adequately
protect the community and assure his appearances in court as required.
Although the continuing 31-month pretrial detention of defendant is long, it does
not violate due process.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: December 6, 2013
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