USA v. Busch et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v.
MATTHEW SMITH,
Defendant.
I. 	INTRODUCTION
Pending before the Court is a motion (Dkt. No. 764) by defendant Matthew
Smith for release on reasonable bail conditions. Defendant has been in
continuous federal custody since September 22, 2010, when the Court arraigned
him on the Second Superseding Indictment. Now, approximately 30 months after
the original order of detention, defendant submits two arguments in favor of
release. Principally, defendant argues that the Court’s decision granting bail for
co-defendant Hector Rodriguez (“Rodriguez”) (Dkt. No. 702) constitutes a change
of circumstances that warrants revisiting bail. Second, and related to the first
argument, defendant insists that his situation matches that of his co-defendant. 1
Consequently, according to defendant, any further detention would amount to a
DECISION AND ORDER
09-CR-331A
1 Hector Rodriguez no longer is in a pretrial posture; he entered a guilty
plea before Judge Arcara on January 18, 2013. (See Minute Entry 1/18/2013.)
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 1 of 22

due process violation for the same reasons that led to the Court to find a violation
for Rodriguez.
The Government opposes bail for defendant because his length of
detention so far has been shorter than Rodriguez’s was when the prior Decision
and Order issued. Additionally, the Government notes that defendant faces far
more serious charges then Rodriguez ever did, including personal participation in
murders and attempted murders.
The United States Probation Office (“USPO”), at the Court’s request,
prepared a memo for the Court and counsel recommending continued detention.
The USPO emphasized the nature of the charges along with a lengthy criminal
history that includes prior probation and parole revocations. In fact, the USPO
noted that defendant was arrested for this case while on parole, leading it to
conclude that supervision is futile for this defendant.
The Court held a bail review hearing on March 1, 2013. For the reasons
below, the Court denies the motion, but without prejudice to revisit the issue of
bail if the Government has not filed a motion to set a trial date by January 15,
2014.
II. 	BACKGROUND
A. 	Nature of the Charges
This case generally concerns allegations that defendant and numerous co-
defendants belonged to a street gang called the 10th Street Gang and that the
2
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 2 of 22

gang members together committed murder, attempted murder, other shootings,
and drug offenses as part of the gang’s operations. The Government first added
defendant to the case when it filed a Second Superseding Indictment on
September 15, 2010 (Dkt. No. 69). In Count One, the Government accused
defendant of racketeering conspiracy in violation of 18 U.S.C. § 1962(d). The
Government alleged that defendant committed the following overt acts in
furtherance of the conspiracy:
1. 	On or about May 17, 2005, defendants PEEBLES, SMITH,
JIMMY SESSIONS, and HARVILLE possessed a .38 caliber
revolver and 4 rounds of ammunition in a vehicle, in the
neighborhood controlled by the 10th Street gang. (Dkt. No. 69
at 14–15.)
2. 	On or about September 2, 2005, defendants JIMMARLAN
SESSIONS and SMITH, and unindicted co-conspirators
possessed approximately 35.16 grams of cocaine base, four
(4) bags of marijuana, one (1) bag heroin, a Glock 9 millimeter
magazine with 10 rounds of ammunition, and $1,256 U.S.
currency at 300 Maryland Street, in the neighborhood
controlled by the 10th Street gang. (Id. at 15.)
3. 	On or about June 12, 2007, defendant SMITH possessed 40
bags containing a quantity of heroin and 1.43 grams of
3
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 3 of 22

hydrocodone in the neighborhood controlled by the 10th Street
gang, and defendant SMITH stated to law enforcement that he
was a member of “1015.” (Id. at 17.)
4. 	On or about June 19, 2010, defendant SMITH and an
unindicted co-conspirator punched and kicked victim T.G.
while yelling “10th Street,” in the vicinity of Prospect Avenue
and Massachusetts Street, in the neighborhood controlled by
the 10th Street gang. (Id. at 31.)
5. 	On or about July 15, 2010, defendant SMITH sold a quantity of
heroin to an individual known to the Grand Jury. (Id. at 32.)
6. 	On or about July 22, 2010, defendant SMITH sold a quantity of
heroin to an individual known to the Grand Jury. (Id.)
The Government also alleged, as a special factor for Count One, that defendant
“did knowingly, willfully, and unlawfully, combine, conspire, and agree together
and with others, known and unknown, to commit the following offenses, that is, to
possess with intent to distribute, and distribute, 50 grams or more of a mixture
and substance containing cocaine base, and 5 kilograms or more of a mixture
and substance containing cocaine, Schedule II controlled substances, in
violation of Title 21, United States Code, Sections 846, 841(a)(1), and
841(b)(1)(A).” (Id. at 32–33.)
4
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 4 of 22

In Count Two of the Second Superseding Indictment, the Government
charged defendant with racketeering in violation of 18 U.S.C. § 1962(c) and
attributed five acts of racketeering to him. In Count 46, the Government accused
defendant and others of conspiracy to possess and to distribute cocaine and
cocaine base in violation of 21 U.S.C. § 846. In Counts 61 and 62, the
Government accused defendant of heroin possession with intent to distribute on
two separate occasions, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
On April 28, 2011, the Government filed a Third Superseding Indictment
(Dkt. No. 226) against defendant and others. All of the previous charges against
defendant remained, in renumbered Counts 1, 2, 56, 72, and 73, but the
Government added a charge (Count 57) of possession of firearms in furtherance
of drug crimes in violation of 18 U.S.C. §§ 924(c)(1) and 2. (Id. at 107–08.)
The Government filed a Fourth Superseding Indictment on February 2,
2012. (Dkt. No. 408.) The Fourth Superseding Indictment did not change the
existing charges against defendant, though it added the following overt acts and
special factors with respect to Count One:
7. 	On or about April 16, 2006, defendants THURMOND,
DELGADO, LOPEZ, ANASTASIO and MATTHEW SMITH,
and others, known and unknown to the Grand Jury, met at a
10th Street gang member’s apartment, located at the corner of
Carolina Street and Niagara Street, in the territory controlled
5
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 5 of 22

by the 10th Street gang. While they were at the apartment,
the defendants discussed retaliating against rival 7th Street
gang members for shooting defendant JONATHAN
DELGADO’S younger brother earlier in the day. (Dkt. No. 408
at 16.)
8. 	On or about April 17, 2006, defendant MATTHEW SMITH, and
others, known and unknown to the Grand Jury, drove past a
7th Street gang hangout located at 155 Pennsylvania Street,
Buffalo, New York, and, after driving past 155 Pennsylvania
Street, defendant MATTHEW SMITH used his cellular phone
and stated, “They are out there, do what you gotta do.” (Id. at
17.)
9. 	On or about April 17, 2006, in the Western District of New
York, defendants, DELGADO, THURMOND, SMITH, PABON,
LOPEZ, and ANASTASIO, together with others, with intent to
cause the death of another person, did intentionally and
unlawfully cause the death of Darinell Young, in violation of
New York Penal Law Sections 125.25(1) and 20. (Id. at 41.)
10. 	On or about April 17, 2006, in the Western District of New
York, defendants, DELGADO, THURMOND, SMITH, PABON,
LOPEZ, and ANASTASIO, together with others, with intent to
6
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 6 of 22

cause the death of another person, did intentionally and
unlawfully cause the death of Brandon MacDonald, in violation
of New York Penal Law Sections 125.25(1) and 20. (Id. at
41–42.)
The Government added the following acts of racketeering with respect to Count
Two:
11. 	On or about April 17, 2006, in the Western District of New
York, the defendant, MATTHEW SMITH, and others, did
intentionally and unlawfully attempt to cause the death of
victims A.W., P.D., and M.A., in violation of New York Penal
Law Sections 125.25(1), 110 and 20. (Id. at 47.)
12. 	Beginning on or before April 17, 2006, in the Western District
of New York, the defendant, MATTHEW SMITH, together with
others, with intent that conduct constituting a violation of
Murder in the Second Degree, New York Penal Law, Section
125.25(1), be performed, by intentionally causing the death of
another person, namely, rival gang members and associates,
did agree to engage in and cause the performance of such
murders. (Id. at 47.)
The Government further added new Counts Three and Four to accuse defendant
of murder in aid of racketeering:
7
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 7 of 22

13. 	On or about April 17, 2006, in the Western District of New
York, the defendants, MATTHEW SMITH, DOMENICO
ANASTASIO, and ISMAEL LOPEZ, together and with others,
for the purpose of maintaining and increasing position within
the 10th Street gang, an enterprise engaged in racketeering
activity, did unlawfully murder Brandon MacDonald, in violation
of New York State Penal Law Sections 125.25(1) and 20. All
in violation of Title 18, United States Code, Sections
1959(a)(1) and 2. (Id. at 77.)
14. 	On or about April 17, 2006, in the Western District of New
York, the defendants, MATTHEW SMITH, DOMENICO
ANASTASIO, and ISMAEL LOPEZ, together and with others,
for the purpose of maintaining and increasing position within
the 10th Street gang, an enterprise engaged in racketeering
activity, did unlawfully murder Darinell Young, in violation of
New York State Penal Law Sections 125.25(1) and 20. All in
violation of Title 18, United States Code, Sections 1959(a)(1)
and 2. (Id. at 78.)
At oral argument, the Government suggested, in addition to the formal
charges, that this defendant and others have attempted to intimidate witnesses
and to arrange additional shootings even while in custody. The Government has
8
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 8 of 22

not documented this alleged conduct, and defendant denied any involvement in
any alleged witness tampering.
The following table summarizes how the charges against defendant have
evolved since the Government added him to this case in the Second Superseding
Indictment:
Proceeding 	Date 	Charges
Second Superseding
Indictment
09/15/2010 	Racketeering Conspiracy (18
U.S.C. § 1962(d)); Racketeering
(18 U.S.C. § 1962(c));
Conspiracy to possess and to
distribute cocaine and cocaine
base (21 U.S.C. § 846); Heroin
possession with intent to
distribute two separate times (21
U.S.C. §§ 841(a)(1) and
841(b)(1)(C))
Third Superseding
Indictment
04/28/2011 	Previous charges plus
Possession of firearms in
furtherance of drug crimes in
violation of 18 U.S.C.
§§ 924(c)(1) and 2
Fourth Superseding
Indictment
02/02/2012 	Previous charges plus murder in
aid of racketeering (18 U.S.C.
§§ 1959(a)(1) and 2); Additional
overt acts and special factors for
Count One including murders of
Darinell Young and Brandon
MacDonald; Additional acts of
racketeering with respect to
Count Two including murder and
attempted murder
9
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 9 of 22

B. 	Discovery and Course of this Case
Numerous events over the past few years have prompted delays and
rescheduling in this case; the Court and the parties have documented many of
those events elsewhere in the docket. Here, the Court will review only those
events that have occurred relative to this defendant. On January 7, 2011,
defendant filed a motion (Dkt. No. 157) to join other defendants’ requests for
extensions of time to file pretrial motions. At a hearing on January 18, 2011, the
Court set a new motion deadline of April 19, 2011, a new response deadline of
June 20, 2011, and a new oral argument date of June 22, 2011. On April 19,
2011, defendant filed another motion (Dkt. No. 218) for an extension of time to file
pretrial motions and joined any requests made by any co-defendants. The Court
issued an amended scheduling order that set a new motion deadline of May 31,
2011, a new response deadline of June 17, 2011, and a new oral argument date
of June 23, 2011. (Dkt. No. 224.) The Third Superseding Indictment required yet
another modified schedule; the Court set one on May 24, 2011, with motions due
by September 20, 2011.
Meanwhile, the Government filed a motion (Dkt. No. 267) to remove
defendant’s original counsel, Lawrence Desiderio. The Government filed the
motion because it “has learned that victim T.G., who was assaulted by defendant
SMITH as reference[d] in Count 1, paragraph 96 of the [Third Superseding]
Indictment, is an individual who has previously been represented as a defendant
10
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 10 of 22

in federal court by Lawrence Desiderio, Esq. Therefore, an actual conflict of
interest exists as a result of defense counsel’s present representation of
defendant SMITH, and his former representation of victim T.G.” (Dkt. No. 267 at
3.) The Court granted the motion orally on August 1, 2011 without opposition and
assigned current counsel, Terry Granger, to take over representation. New
counsel proceeded to file two more motions for extensions of time to file pretrial
motions (Dkt. Nos. 305, 356), while the Government filed a motion (Dkt. No. 366)
for additional time to respond to omnibus pretrial motions filed up to that point.
The Court reset the deadline for the filing of pretrial motions to January 13, 2012
and gave the Government until February 24, 2012 to file responses. Defendant
filed his omnibus pretrial motions on January 13, 2012 (Dkt. No. 385).
The last major event affecting the course of defendant’s case was the filing
of the Fourth Superseding Indictment on February 2, 2012. The filing of the new
indictment prompted a scheduling conference with all defendants on February 28,
2012, at which the Court set a deadline of May 30, 2012 for any remaining
discovery, and a deadline of July 16, 2012 for all pretrial motions. The Court had
directed that all defendants refile their motions in the wake of the Fourth
Superseding Indictment. Defendant filed renewed omnibus pretrial motions on
July 13, 2012 (Dkt. No. 519). Defendant also filed a supplemental motion to
suppress on December 21, 2012 (Dkt. No. 705) and then proceeded through the
consolidated suppression hearings that the Court held in February 2013.
11
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 11 of 22

C. 	Pending Bail Motion
Defendant filed the pending bail motion on February 1, 2013. Defendant’s
motion papers are short because he refers to this Court’s Decision and Order for
co-defendant Rodriguez as a “substantial change in circumstances” that warrants
release. Defendant concedes that his length of detention is shorter than
Rodriguez’s was; nonetheless, defendant argues that the likely future delay
before trial will be the same for him as it was for Rodriguez. Defendant then
makes reference to the other two factors that affect a due process analysis by
stating in conclusory fashion that “[t]he two other factors weigh the same in this
case as they do in the Rodriguez matter.” (Dkt. No. 764 at 3.)
The Government opposes the pending motion by placing heavy emphasis
on the shorter length of detention and the higher gravity of the charges for this
defendant compared to Rodriguez. Picking up on defendant’s concession about
length of detention, the Government argues that the Second Circuit never has
drawn a bright line for due process violations and that defendant’s detention has
not exceeded the range of detention periods that the Second Circuit has
considered in prior cases. Additionally, the Government notes that the charges
against Rodriguez, while serious in themselves, all concerned drug and firearm
possession. In contrast, defendant faces substantially all of the charges that
Rodriguez did plus alleged direct involvement in two murders and several
attempted murders. According to the Government, a shorter length of detention
12
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 12 of 22

and far more serious charges tip the due process analysis used for Rodriguez
back in favor of continued detention.
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).
Here, defendant has conceded implicitly that no new information exists that
affects the availability of conditions of release. The Court originally ordered
defendant detained based on the nature of the charges in the Second
13
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 13 of 22

Superseding Indictment and on a significant criminal history that includes prior
probation and parole revocations. Cf. U.S. v. Ard, No. 10-CR-184, 2011 WL
2421222, at *3 (W.D.N.Y. June 13, 2011) (Skretny, C.J.) (“Defendant’s criminal
history includes one arrest while under probation supervision and two arrests
while released on bail, demonstrating that Defendant is unable to comply with
conditions of release.”). Defendant has offered no change in those
circumstances and has not even proposed where he would live if the Court
wanted to consider releasing him. Cf. U.S. v. Mansuryan, No. 10-10060-03-EFM,
2010 WL 2545989, at *2–3 (D. Kan. June 22, 2010) (“Further militating against
release is the fact that Defendant has failed to identify a suitable place for him to
reside while out on release.”). Defendant offers only the proposition that the
Court’s prior Decision and Order for co-defendant Rodriguez means bail for him,
too. Defendant’s proposition assumes that the prior Decision and Order changed
any substantive law regarding bail. The prior Decision and Order, however,
simply applied Second Circuit case law to an unprecedented length of detention
that had no proportionate justification. Additionally, a bail decision for any one
defendant in a case does not automatically affect any other defendant in that
case. Cf. U.S. v. Lockwood, No. 11–CR–85A, 2012 WL 1041606, at *3–4
(W.D.N.Y. Mar. 28, 2012) (Scott, M.J.) (“Defendant compares himself to
co-defendants who have been released but offers no basis for that comparison.”)
(citing U.S. v. Clark, 68 F.3d 467 (table), 1995 WL 581606, at *2 (5th Cir. Aug.29,
14
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 14 of 22

1995) (rejecting a defendant’s claim “that her detention violates equal protection
because her co-defendants were released” on the grounds that defendant made
no showing of disparity in treatment); U.S. v. Duncan, 897 F. Supp. 688, 691
(N.D.N.Y.1995) (finding that “the Court gives no weight to the fact that a
co-defendant was released on bail, since the determination as to bail for that
defendant was based upon independent factors not before the Court.”)).
Consequently, and apart from any considerations of due process that the
Court explains below, the substantive factors that first prompted defendant’s
detention persist and weigh in favor of continued pretrial detention.
B. 	Analysis of Due Process
As the Court noted when assessing the bail situation for Rodriguez,
defendant’s argument for a due process violation regardless of substantive
factors reduces to one question. “Simply put, even though substantive grounds
exist for detention, has defendant’s detention grown so long that his due-process
rights override those substantive grounds?” U.S. v. Rodriguez, No. 09-CR-331A,
2012 WL 6690197, at *9 (W.D.N.Y. Dec. 21, 2012) (Scott, M.J.) (citing U.S. v.
Ojeda Rios, 846 F.2d 167, 168–69 (2d Cir. 1988)). Answering the question
requires careful consideration of constitutional and Second Circuit criteria. “The
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
15
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 15 of 22

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.
1. 	Length of Detention
The first factor affecting a possible due process violation is the total length
of defendant’s 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
16
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 16 of 22

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).
Here, defendant’s attempt to line up with Rodriguez’s situation fails for two
reasons. While the Court wants to be careful to avoid taking the kind of formulaic
approach to detention periods that the Second Circuit has discouraged,
defendant’s length of detention simply is not as long as Rodriguez’s. As of this
writing, defendant’s total length of detention is approximately 30 months. That
length of detention leads to the second reason to reject defendant’s argument:
Defendant’s total length of detention has not yet run past the outer range of
factual scenarios that the Second Circuit has ever considered. See Rodriguez,
2012 WL 6690197, at *11 (summarizing current Second Circuit case law). The
Court granted the bail motion for Rodriguez largely because his length of
17
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 17 of 22

detention, with or without likely future delay, had no precedent in Second Circuit
case law, not even in cases concerning international terrorism. The Court has
deep concerns about letting this defendant’s length of detention enter uncharted
territory, but for now, the urgency that Rodriguez presented is not here. The
Court thus finds that the first factor narrowly favors the Government.
2. 	Responsibility for Delay
Next, the Court will consider the extent to which the Government is
responsible for the time that defendant has 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 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
18
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 18 of 22

receive complete absolution for decisions whose impact on pretrial detention is
foreseeable.
Because this defendant and Rodriguez are co-defendants in the same
case, the Court inevitably finds similar circumstances that warrant a similar
conclusion. Over the course of this case, the Government and defendant
together have asked for extensions of time to file various kinds of briefing.
Defendant also needed a change of counsel to avoid a conflict of interest. An
earlier disclosure of that conflict theoretically might have been possible.
Nonetheless, the Government had no say in the initial appointment of counsel
under the Criminal Justice Act and thus should not have to account for any time
that current counsel had to spend becoming acquainted with the case. A bigger
issue concerning the Government is its decision to supersede the indictment in
this case four different times. Compared to Rodriguez and certain other
defendants in the case, the Fourth Superseding Indictment constituted a major
change for this defendant through the addition of charges relating to murder and
attempted murder. The Court will not attempt to encroach on prosecutorial
discretion by questioning whether the Government could have handled the new
information in the Fourth Superseding Indictment in some other way that would
not have slowed down the case. As with Rodriguez, though, the Government has
made choices throughout the duration of this case, and choices matter. Cf.
Gonzales Claudio, 806 F.2d at 342–43 (“It suffices for present purposes to
19
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 19 of 22

conclude that the Government, even if not deserving of blame, bears
a responsibility for a portion of the delay significant enough to add considerable
weight to the defendants’ claim that the duration of detention has exceeded
constitutional limits.”) (citation omitted).
Under these circumstances, the Court finds that both sides have
contributed enough to the age of this case that the second factor in the due
process analysis is neutral and does not favor either party.
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 defendant poses a risk of flight, a
danger to the community, or both. Some details of the Court’s analysis appear
earlier in this Decision and Order. In short, defendant faces gravely serious drug,
firearm, and murder-related racketeering / racketeering-conspiracy charges that
trigger a statutory presumption in favor of detention. Unlike Rodriguez, defendant
faces life in prison if convicted as charged. Also unlike Rodriguez, defendant now
has proceeded through extensive consolidated suppression hearings during
which the Government presented evidence from informants, surveillance, and
other sources. Cf. U.S. v. Jackson, 823 F.2d 4, 7 (2d Cir. 1987) (“As to the
weight of the evidence, the government apparently has numerous informants as
well as physical evidence to support its charges. Indeed, [defendant] has made
20
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 20 of 22

no significant attack on the government’s proffered evidence.”). The evidence
that the Government would present at trial appears to be strong and has
strengthened over the course of the case. Defendant has a lengthy criminal
history that includes a history of probation and parole revocations. Ample
reasons thus exist to believe that defendant has a strong motive to flee and would
pose a danger to the community despite lifelong ties to the Western New York
area. This final factor in the due process analysis thus favors the Government.
In the end, then, a review of the due process factors shows one neutral
factor and two that favor the Government. On this basis, the Court concludes
that defendant’s continued pretrial detention would not offend due process. The
Court cautions the Government, however, that it must prepare this case for trial
as expeditiously as possible. The Court noted when reviewing bail for Rodriguez
that any trial in this case likely would not occur within this calendar year. Even if
that prediction holds true—and the Government is strongly encouraged to prove it
wrong if possible—the Government must take all necessary measures to have a
trial ready to begin by early next year to avoid pushing this defendant and others
into uncharted due process territory. The Court thus will make its denial of the
pending motion without prejudice to revisit the possibility of bail conditions if the
Government has not moved to set a trial date by January 15, 2014.
21
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 21 of 22

IV. 	CONCLUSION
For all of the foregoing reasons, the Court denies defendant’s bail motion
(Dkt. No. 764), but without prejudice to revisit the issue of bail if the Government
has not filed a motion to set a trial date by January 15, 2014.
SO ORDERED.
__Bá [âz{ UA fvÉàà________
HONORABLE HUGH B. SCOTT
UNITED STATES MAGISTRATE JUDGE
DATED: March 18, 2013
22
Case 1:09-cr-00331-RJA-HBS Document 841 Filed 03/18/13 Page 22 of 22