USA v. Eldridge et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v.
KASHIKA SPEED and
GALEN ROSE,
Defendants.
I. 	INTRODUCTION
Pending before the Court are motions by defendants Kashika Speed
(“Speed”) (Dkt. No. 193) and Galen Rose (“Rose”) (Dkt. No. 189) for release from
custody on reasonable bail conditions. Speed argues that his detention has
stretched to about 44 months because the Government released new information
since the last time that he applied for bail. (See Dkt. Nos. 128, 155.) The new
information prompted the Court to schedule additional evidentiary hearings
regarding destruction of gun evidence and regarding certain identification
procedures. According to Speed, he is no closer to trial than he was when he last
applied for bail, and the Government is wholly responsible for the additional
delay. Given the recent decisions in U.S. v. Briggs, 697 F.3d 98, 103 (2d Cir.
Oct. 9, 2012) and U.S. v. Rodriguez, No. 09-CR-331A, 2012 WL 6690197
(W.D.N.Y. Dec. 21, 2012) (Scott, M.J.), as well as the likelihood that this case will
DECISION AND ORDER
09-CR-329A
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not go to trial in this calendar year, Speed asserts that any further detention
would constitute a due process violation.
Rose argues for release because he is caught in the middle of discovery
problems, extra motion practice, and additional hearings involving his co-
defendants. Rose has been in custody for about 48 months; Rose sought
severance from his co-defendants given all of the proceedings involving them,
and his request remains pending. (See Dkt. Nos. 79, 99.) According to Rose,
the charges and the evidence against him rest on inconsistent witness
statements that are weak, and yet his continuous pretrial custody is about to
exceed 50 months. Given his family connections to the area and given that he
spent almost four years in the area between the time of his initial questioning and
the time of his arrest, Rose asserts that reasonable bail conditions are possible
and that further detention would constitute a due process violation.
The Government opposes both bail motions. The Government argues that
a significant portion of each defendant’s detention traces back to uncoordinated
defense pretrial motions and a motion to recuse both the lead prosecutor and the
entire United States Attorney’s Office for this District. The Government argues
further that Speed’s most recent motion practice, if not altogether excessive, does
not change the severity of the charges and the strength of the evidence against
him. The Government also cites each defendant’s criminal history, which the
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United States Probation Office (“USPO”) highlighted in separate memoranda
dated February 12, 2013 recommending continued detention.
The Court held a bail review hearing for Rose on February 22, 2013 and
one for Speed on February 28, 2013. For the reasons below, the Court denies
both motions, but without prejudice to revisit the matter and to propose
reasonable bail conditions if the Government has not moved to set a trial date by
March 14, 2014.
II. 	BACKGROUND
A. 	Recent Case History
The Court and the parties have filed numerous documents concerning the
factual allegations in this case. Very briefly, this case concerns allegations that
Speed, Rose, and other co-defendants ran a criminal organization in the East
Side of Buffalo, New York. The organization allegedly engaged in acts of
violence including murder, robbery, extortion, and narcotics distribution. Because
the pending motions focus on events that occurred approximately within the past
year, the Court will review only the more recent events.
On June 20, 2012, the Government filed a Superseding Indictment. The
Superseding Indictment primarily added the allegation that Speed and Rose were
involved in the robbery and murder of Thedrus Laster. The Court arraigned all
defendants on the Superseding Indictment on June 21, 2012.
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On July 2 and 20, 2012, co-defendant Thamud Eldridge (“Eldridge”) filed
supplemental motions to dismiss Counts 16 and 17 of the Superseding
Indictment and to suppress evidence (Dkt. Nos. 168, 170). On August 14, 2012,
Speed filed a motion (Dkt. No. 176) for an extension of time to file submissions
following a hearing held previously on May 14, 2012. The Court granted that
motion and allowed Speed to file post-hearing briefing until September 4, 2012.
Speed filed his submissions by that date. On September 27, 2012, the Court
granted Eldridge’s request to reopen his suppression hearing with respect to
certain identification and gun destruction issues. After one request for an
adjournment that Eldridge filed (Dkt. No. 181) and that the Court granted, the
Court held the supplemental suppression hearing on November 19, 2012.
Following the hearing, Eldridge filed supplemental motions to suppress evidence
and to dismiss Counts 16 and 17 of the Superseding Indictment (Dkt. Nos. 186,
187). Nearly two months later, on January 25, 2013, Rose filed his own motion to
dismiss Counts 11 and 12 of the Superseding Indictment (Dkt. No. 190).
As the events outlined above unfolded, Rose’s motion and supplemental
motion for severance (Dkt. Nos. 79, 99) remained pending.
B. 	Pending Bail Motions
Speed and Rose now argue in their respective motions that the past year’s
worth of delay warrants release on due process grounds. Speed argues that he
is no closer to trial than he was a year ago, because of Government mishandling
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of discovery in this case. Speed points specifically to three developments on the
Government’s side that forced him to litigate further to protect his rights: “1)
Officer Perrin’s admission of beating Eldridge and the related motion to recuse
the prosecutor; 2) the destruction of the firearm associated with Counts 16 and 17
(discussed below); and 3) the manner in which the government has handled the
Flap homicide (discussed below).” (Dkt. No. 193-1 at 6.) According to Speed,
the Court implicitly has attributed recent delay to the Government through its
decision to reopen Eldridge’s suppression hearing. Because the Government
has slowed the case down through no fault of his own and because his detention
now has stretched to approximately 44 months with no trial date in sight, Speed
concludes that further pretrial detention would be punitive and would constitute a
due process violation. In support of release, Speed submits that he would not be
a flight risk because he is a lifelong native of Buffalo and has extensive family ties
here. Speed proposes that he could live with his wife, who lives with and cares
for the three of his four children who live locally.
As for Rose, his argument for release focuses on the consequence of
having his severance motions still pending. Rose argues that the years of delay
in this case, including the previous recusal motion and the recent events
concerning the identification and gun destruction issues, have nothing to do with
him. All of those events have pertained to Eldridge or other co-defendants, but
Rose is nowhere near a trial date either because no resolution of his severance
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motions has occurred yet. Rose concludes that his pretrial detention has
stretched to approximately 48 months without justification, and that further
detention for reasons not pertaining to him would constitute a due process
violation. In support of release, Rose submits that his criminal record is old and
relatively light and that he has extensive family ties in the Buffalo area. Rose
proposes living with his mother if released on bail.
The Government opposes both motions based on the nature of the charges
and the delays that Speed and Rose have imposed on themselves. The
Government asserts that it has evidence—evidence that prompted the
Superseding Indictment—showing that Speed and Rose both were involved in
the murder of Thedrus Laster. That evidence adds to evidence that the
Government allegedly already had linking Speed and Rose to drug trafficking,
robbery, and extortion. As for delays, the Government argues that Speed and
Rose joined in the prior recusal motion and that prosecutors had nothing to do
with the delay that resulted from that motion. The other motion practice filed in
the past year amounts, according to the Government, to little more than efforts to
obtain early Jencks and Giglio material. The Government concludes its
opposition by citing to the criminal history of each defendant, noting for Speed in
particular that his criminal history could subject him to life imprisonment if
convicted on the current charges.
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III. 	DISCUSSION
A. 	Reconsideration of Bail Generally
Once the Court has issued a detention order, it may reconsider that order
and reopen the detention hearing “at any time before trial if the judicial officer
finds that information exists that was not known to the movant at the time of the
hearing and that has a material bearing on the issue whether there are conditions
of release that will reasonably assure the appearance of such person as required
and the safety of any other person and the community.” 18 U.S.C. § 3142(f)(2).
“New and material information for Section 3142(f)(2)(B) purposes consists of
something other than a defendant’s own evaluation of his character or the
strength of the case against him: truly changed circumstances, something
unexpected, or a significant event.” U.S. v. Jerdine, No. 1:08 CR 00481, 2009
WL 4906564, at *3 (N.D. Ohio Dec. 18, 2009) (citation omitted). Where evidence
was available to defendant at the time of the hearing, the hearing will not be
reopened. See U.S. v. Dillon, 938 F.2d 1412, 1415 (1st Cir. 1991); U.S. v. Hare,
873 F.2d 796, 799 (5th Cir. 1989).
Apart from the due process analysis that the Court addresses below, the
basic substantive factors affecting detention have not changed since the Court
last addressed bail for each defendant. Each defendant’s criminal history has not
changed, except perhaps that those histories now are a little older. Speed and
Rose continue to face serious charges including the additional allegations from
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the Superseding Indictment. While litigating the pending bail motions and other
motions in the case, the Government has proffered a significant amount of
evidence from witnesses and other sources that, without infringing on the
presumption of innocence at trial, would appear to substantiate the allegations
against each defendant. The ongoing proceedings concerning the issues of
identification and gun destruction might weaken some of the evidence against
each defendant but does not affect other evidence that the Government has
proffered. Additionally, to the extent that the ongoing proceedings reflect differing
interpretations of the available evidence, those differences of interpretation by
themselves do not warrant reconsideration of bail.
Under these circumstances, the Court finds no substantive reason under
18 U.S.C. § 3142(f)(2) to revisit bail for either Speed or Rose.
B. 	Analysis of Due Process
As with certain other aging criminal cases that the Court is managing right
now, the more agonizing aspect of the pending bail motions concerns “the
oncoming collision between a solid substantive basis for defendant[s’] pretrial
detention and defendant[s’] right to due process to avoid indefinite detention.”
Rodriguez, 2012 WL 6690197, at *9. “Every so often, a district court is presented
with a problem that is virtually insoluble. This is one of those cases.” U.S. v.
Ojeda Rios, 846 F.2d 167, 168 (2d Cir. 1988). Addressing this dilemma requires
careful consideration of constitutional and Second Circuit criteria. “The
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government may detain a defendant prior to trial consistent with the Due Process
Clause of the Fifth Amendment so long as confinement does not amount to
punishment of the detainee. Absent an expressed intention to punish, whether
detention constitutes impermissible punishment or permissible regulation turns on
whether the government has a nonpunitive reason for detention and whether
detention appears excessive in relation to the nonpunitive purpose. Pretrial
detention of a defendant, when of reasonable duration, serves important
regulatory purposes, including the prevention of flight and the protection of the
community from a potentially dangerous individual. However, when detention
becomes excessively prolonged, it may no longer be reasonable in relation to the
regulatory goals of detention, in which event a violation of due process occurs.”
U.S. v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993) (internal quotation marks and
citations omitted). “To determine whether the length of pretrial detention has
become constitutionally excessive, we must weigh three factors: (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,
that is, the evidence concerning risk of flight and danger to the safety of any other
person or the community.” Id. at 1043 (internal quotation marks and citations
omitted). The Court will address each of these factors in turn.
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1. 	Length of Detention
The first factor affecting a possible due-process violation is the total length
of defendants’ pretrial detention, regardless of any breakdown of responsibility
that occurs later in the analysis. See U.S. v. Gonzales Claudio, 806 F.2d 334,
340 (2d Cir. 1986) (beginning due-process analysis by “[f]ocusing first on the
duration of confinement” and acknowledging “the total time the defendants have
been in pretrial detention”). Courts that measure total pretrial detention count
actual detention plus likely prospective future detention; they ignore possible
future detention that is only speculative. See id. (assessing future scheduling that
is “without speculation”); see also Millan, 4 F.3d at 1044 (“In weighing potential
future detention, however, we take into account non-speculative aspects of future
confinement.”) (internal quotation marks and citations omitted). “While the length
of pretrial detention is a factor in determining whether due process has been
violated, the length of detention alone is not dispositive and will rarely by itself
offend due process.” U.S. v. El-Hage, 213 F.3d 74, 79 (2d Cir. 2000) (internal
quotation marks and citations omitted).
Because the first factor in the due process analysis does not address
responsibility for delay, Speed and Rose on this point find themselves in the
same uncharted territory that the Court described in Rodriguez. As of this writing,
Speed has been in pretrial custody for about 44 months and Rose for about 48
months. While the Court wants to avoid any sort of formulaic approach to
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assessing length of detention, the Second Circuit never has assessed, let alone
endorsed, a pretrial detention that exceeded approximately 33 months—not even
in instances of international terrorism. See Rodriguez, 2012 WL 6690197, at *11
(summarizing current Second Circuit case law). Speed and Rose face far more
serious charges than the defendant in Rodriguez did, but their potential pretrial
detention will run even longer. This Court in Rodriguez expressed concern that a
trial in the case likely would not occur within the next 12 months, which would
push total pretrial detention over 50 months. Here, in contrast, Speed and Rose
already are on the verge of crossing the 50-month threshold, with their trials
unlikely to occur before late this year. The possibility of a pretrial detention
reaching 60 months—five years—is a concept utterly foreign to Second Circuit
case law as it currently stands. The first factor thus weighs strongly in favor of
Speed and Rose.
2. 	Responsibility for Delay
Next, the Court will consider the extent to which the Government is
responsible for the years that Speed and Rose have spent in pretrial detention.
When looking for “responsibility,” courts will consider any conduct intended to
cause delay. Courts also will charge to defendants time lost to motion practice
that could have proceeded in a more efficient or practical way. Cf. Gonzales
Claudio, 806 F.2d at 341 (“[T]here is some basis for believing that defense
counsel could have proceeded more expeditiously by taking a less fragmented
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approach to pretrial maneuvering.”). In between, though, lies a range of case-
management decisions by the Government that warrant at least some of the
respect afforded to prosecutorial discretion. See U.S. v. Orena, 986 F.2d 628,
631 (2d Cir. 1993) (“[W]e decline to adopt a rule that would deter the government
from seeking joint trials (or consenting to severance) as a means of economizing
judicial and other resources.”). Courts generally avoid micromanaging cases, but
respect for prosecutorial discretion does not mean that the Government always
should receive complete absolution for decisions whose impact on pretrial
detention is foreseeable.
Here, two blocks of time passed through no fault of the Government. The
first block of time concerns the recusal motion. Eldridge filed that motion on
March 17, 2011. Speed and Rose did not oppose a Government request for
extension of time to file a response to that motion. (See Dkt. No. 104.) Oral
argument did not occur until June 8, 2011. This Court did not issue its order on
that motion until October 7, 2011 (Dkt. No. 123). Judge Arcara resolved the issue
of recusal on January 31, 2012 (Dkt. No. 138). In total, just over 10 months
passed during the pendency of the recusal motion when the Government
reasonably would have felt paralyzed with respect to moving the case forward.
The second block of time is not a discrete stretch of time per se but concerns the
continuing pendency of Rose’s severance motion. Although all counsel in this
case likely are familiar with this Court’s custom of deferring severance motions to
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the respective District Judge, the Court has not issued any formal ruling that one
side or the other could appeal to Judge Arcara for further consideration. Any
calculation here would be somewhat arbitrary in nature, but the Court will
discount the Government’s responsibility for delay in this case by an additional
four months based on the severance issue, which would be equivalent to the time
that has passed from the filing of supplemental suppression and dismissal
motions in December through the present time. Discounting each defendant’s
length of detention by 14 months would bring Speed and Rose closer to the
range of detention periods that the Second Circuit has considered in this case
law.
The parties’ other arguments about delay essentially nullify each other.
The Government might be correct that the latest motions do not differ much from
motions for early disclosure of Jencks and Giglio material, but the disclosures that
prompted an effort to resolve the issues likely could have been done earlier. At
the same time, defense counsel have filled the docket with motions that have
rolled out in stages almost like the pretrial motions seen more commonly in civil
litigation. Under these circumstances, the Court will not attempt a precise
accounting of who did what and when, and whether they could have taken those
actions earlier. Since the 14 months mentioned above indisputably were beyond
the Government’s control, the Court finds that the second factor in the due
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process analysis favors the Government for a length of time up to 14 months but
is neutral to any other extent.
To help Rose reach a final determination of his request for severance, this
Court hereby denies those portions of his pretrial motions (Dkt. Nos. 79, 99) that
seek severance, but without prejudice to pursue the issue further with Judge
Arcara as counsel may see fit.
3. 	Strength of the Proof
As noted above and without infringing on the presumption of innocence,
the final factor in the due process analysis requires the Court to consider the
strength of the Government’s evidence that defendants pose a risk of flight, a
danger to the community, or both. The details of the Court’s analysis appear
earlier in this Decision and Order. Briefly, Speed and Rose face very serious
charges including involvement in murder; the charges and the associated
evidence appear to have strengthened over the course of the Government’s
investigation. Both defendants have extensive criminal histories that include acts
of violence, violations of supervision conditions, or both. Combining the charges,
the available evidence, and the criminal histories leads the Court to believe that
no combination of release conditions would ensure further appearance and would
protect the community. This final factor in the due process analysis thus favors
the Government.
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Overall, then, one factor in the due process analysis strongly favors Speed
and Rose while the other two favor the Government. Under these circumstances,
the Court will attempt a balanced approach to the pending motions. Continued
detention remains appropriate, for now. That said, both sides are cautioned to
resolve the remaining issues as expeditiously as possible. Factoring in some
pretrial detention that would occur once a trial is scheduled and the parties
prepare for it, and assuming no delays between now and then attributable to
defendants, if the Government has not moved to set a trial date by March 14,
2014 then Speed and Rose should revisit the issue of bail and whether conditions
like the ones proposed in Rodriguez would be warranted.
IV. 	CONCLUSION
For all of the foregoing reasons, the Court denies Speed and Rose’s
respective motions for bail (Dkt. Nos. 189, 193), but without prejudice to revisit
the matter and to propose reasonable bail conditions if the Government has not
moved to set a trial date by March 14, 2014.
The Court also denies those portions of Rose’s pretrial motions (Dkt. Nos.
79, 99) that seek severance, but without prejudice to pursue the issue further with
Judge Arcara.
SO ORDERED.
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HONORABLE HUGH B. SCOTT
UNITED STATES MAGISTRATE JUDGE
DATED: March 25, 2013
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