United States of America v. English, No. 10-3258 (2d Cir. 2011)
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10-3258 (L) USA v. English 10-3258-cr, 10-4045-cr USA v. English 10-3258-cr, -4045-cr USA v. English 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 5 (Argued: January 4, 2011 Decided: January 20, 2011) Docket Nos. 10-3258-cr, -4045 cr 6 7 8 UNITED STATES OF AMERICA, 9 Appellee, - v. 10 11 DEREK ANDRE ENGLISH and RONALD ANDERSON, 12 13 14 Defendants-Appellees. Before: 15 KEARSE, WINTER, and HALL, Circuit Judges. Appeals from orders of the United States District Court 16 for 17 denying defendants' motions for bail pending trial, 18 their pretrial detention pursuant to 18 U.S.C. 19 of risk of flight and danger to the community. 20 the Southern District of New York, Colleen McMahon, § Judge, and ordering 3142 on grounds Affirmed. 21 22 23 SANTOSH ARAVIND, Assistant United States Attorney for the Southern District of New York, New York, New York, for Appellee. 24 25 RICHARD B. LIND, New York, New Defendant-Appellant English. 26 27 28 29 RONALD RUBINSTEIN, New York, New York (Rubinstein & Corozzo, New York, New York, of counsel), for Defendant-Appellant Anderson. York, for 1 KEARSE, Circuit Judge: 2 Defendants been Derek Andre English and Ronald Anderson, indicted 3 have 4 cocaine, 5 841(b) (1) (A), 6 18 U.S.C. 7 entered 8 Dist 9 is assigned, denying their applications for bail pending trial and in charges violation of 21 of conspiring U.S.C. §§ to 846, traffic 841 (a) (1), and engaging in firearms offenses, in and in violation of 922 (g) (1), 924 (c) (1) (A) (i), and 2, appeal from orders §§ in on who the United States District Court for the Southern ct of New York by Colleen McMahon, Judge, to whom their case 10 ordering their pretrial detention pursuant to 18 U.S.C. 11 on 12 Following their arrests but prior to the filing of the indictment 13 and the assignment of the case to Judge McMahon, 14 unsuccessfully applied for bail before a magistrate judge and had 15 appealed the denial to District Judge Lawrence M. McKenna, who was 16 then 17 emergency 18 S.D.N.Y. 19 motions, finding that although the combinations of bail conditions 20 proposed by English and Anderson, respectively, were sufficient to 21 assure their future court appearances as required, a 22 defendants had possessed persuaded him that these defendants posed 23 danger 24 McMahon, 25 was 26 impermissibly revisited Judge McKenna's finding that they posed no grounds of sitting risk as the matters Local to the of "Part and Rules flight I" and judge preliminary 3, community. danger 7(a)-(b) i for, to inter criminal Judge In challenging the 3142(e) community. defendants had alia, certain proceedings, McKenna the § denied orders see their rearm that of Judge English and Anderson contend principally that the judge predisposed against their - 2 - bail applications, that she 1 risk of flight, and that they should be released in light of new 2 information 3 their bail motions. 4 we affirm the orders of the district court. bearing on Judge McKenna's danger-based denial of Finding no merit in defendants' contentions, BACKGROUND I . 5 All of the events described below occurred in 2010 unless 6 7 otherwise noted. English and Anderson were arrested on April 28 8 by Drug Enforcement Administration ("DEA") 9 drug-trafficking organization. agents investigating a According to the complaint filed 10 on April 11 following. 12 containing approximately five kilograms of cocaine; the person who 13 attempted to collect the package was arrested and agreed to become 14 a cooperating witness ("CW"). 15 information 16 belonging to one Rodney Johnson another package containing five 17 kilograms of cocaine and a gun in a hidden compartment. 18 " 19 New York, house that the CW described as a stash house for drugs, 20 money from drug sales, 21 observed 22 house; when English exited carrying a bag and began to drive away, 23 he 24 approximately 10 kilograms of cocaine. 29 DEA 8(a), 10.) was ("Complaint"), agents the events of April 28 included the intercepted provided by the a Federal Express (See Complaint " CW, the agents Acting on 6-7.) seized package from a car (See DEA agents also conducted surveillance of a Queens, English, stopped and guns. Anderson, and (See id. and arrested; Johnson the - 3 - bag , 8 (b) . ) arrive was and found (See id. " The agents enter to the contain 11(a)-(c).) 1 After arresting English, the agents arrested Anderson and Johnson. 2 In subsequently executing a 3 agents found, 4 appeared 5 quantity of money in the living roomi 6 appears to be a machine gun with what appears to be a silencer in 7 the hallway closet." 8 9 to inter alia, be cocaine On April 29, (Id. search warrant for the house, the "(1) two kilograms of a substance that in ~~ the kitcheni [and] (2) (3) an undetermined a firearm that 11(d)-(e).) English and Anderson were presented before Magistrate Judge Kevin N. Fox and moved to be released on bail. 10 The Assistant United States Attorney (HAUSA") opposed the motions 11 and asked that defendants be detained on the grounds that they 12 were flight risks and posed a significant danger to the community. 13 By letter dated May 3, 14 allegations of the Complaint, including that the agents had found 15 in the stash house what appeared to be a machine gun, and added, 16 inter alia, that 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 2010, the government reiterated the main [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 mini mums 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. - 4 - 1 (Letter from AUSA Michelle K. Parikh to Magistrate Judge Fox dated 2 May 3, 2010, at 3 4.) 3 government 4 leased in Anderson's name and that the landlord had seen Anderson 5 there on several occasions 6 2010 7 "was running from the location" 8 house revealed not only the gun and silencer, but also ammunition 9 (see also stated, ("May 4 Tr. n), id. at 4) i through At the May 4 hearing on the motions, the inter at 4) i and that numerous alia, that the stash house was (see Joint Hearing Transcript, May 4, that when he was arrested, (id. at 5) "both of these defendants have been linked 11 narcotics 12 activity as part of that conspiracy" (id. at 6). and "have of that the search of the 10 conspiracy" sources i Anderson the also DEA been to a much linked to The magistrate judge denied the bail motions. 13 larger violent Al though 14 finding 15 presumption of flight risk, 16 concluded that in light of the large quantity of cocaine involved, 17 the 18 weapon recovered from the stash house, 19 to the community. 20 A. 21 that both sophistication defendants had rebutted see 18 U.S.C. defendants' §§ narcotics the 3142 (e), statutory (f) (1), operation, he and the defendants posed a danger May 4 Tr. 25-27.) The Proceedings Before Judge McKenna English and Anderson appealed, and their motions judge on May 5. came The court 22 before Judge McKenna as the Part I 23 indicated that it was particularly concerned about the gun found 24 in the stash house. 25 ("May 5 Tr."), at 5.) Joint Hearing Transcript, May 5, 2010 English's attorney argued principally that - 5 - 1 there was no evidence that English had been to the closet in which 2 the gun was 3 Anderson was unarmed when arrested and that, 4 the house, 5 (See id. at 6, 16 18.) 6 it was highly unlikely that English and Anderson, handling large 7 quantities of narcotics in the house, did not know that a machine 8 gun, silencer, and ammunition were there. found; Anderson I s attorney argued principally that although he leased none of his personal belongings were on the premises. The government responded principally that (See id. at 19.) 9 In response to an inquiry from the court as to why the 10 government's letter to the magistrate judge said that the weapon 11 found in the closet merely "appear [ed] 12 AUSA stated that to be a machine gun, the 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 characterized it as a weapon that was -that appeared to be a machine gun. . 13 14 15 16 17 18 19 20 21 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. 22 23 24 25 II (May 5 Tr. 20 - 21 . ) After hearing additional 26 argument I Judge McKenna stated 27 that he viewed it as an extremely close case but concluded that 28 the detention orders should not be disturbed. 29 bail 30 substantial to ensure 31 when needed in court. packages proposed II by defendants He found that the were sufficiently "that these defendants would be available (Id. at 33.) - 6 However, he found that, in 1 light of 2 danger to the community. 3 the gun found in the stash house, defendants posed a The court felt there was little or no 10 11 danger 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 wi th a mul ti (-] 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. 12 13 14 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 . . . . 4 5 6 7 8 9 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The gun is the problem, in my view. From the gun you can certainly draw an inference of, somebody who possess res] 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 many many many cases that in the narcotics trade, the context, the guns are typically possessed not with a view to harm to the general public, but with a view to protection against other drug dealers or people who are in the trade of robbing drug dealers t which is not an uncommon situation. 29 30 31 32 33 34 35 36 However a oun is a oun. A machine gun is a machine gun. There are witnesses out there. And I'm going to deny bail for the sole reason of the gun. I want to make that record clear if somebody wants to appeal. It's if the gun had not been found in the closet, I would accept these bail packages and these defendants would have been released on bail on the basis of those packages. 37 38 t (May 5 Tr. 33-35 (emphases added).) Thereafter, the government t by letter dated May 14, 2010 39 ("Government May 14 Letter"), relayed to defendants, inter alia t a 40 laboratory report dated May 12 t 41 Section ("FAS") of the New York Police Department with respect to 2010 t - 7 - from the Firearm Analysis 1 the operability of the gun found in the stash house 2 Report") . 3 pistol, stated in pertinent part that the weapon had 4 5 6 7 8 9 10 11 12 The report, ("NYPD Lab. characterizing the gun as a semiautomatic been tested and is not operable; pistol received without hammer pin, hammer pin retainer, and sear spring holder . . . Unable to test fire, parts unavailable in FAS . Pistol has the following assault weapon characteristics: threaded barrel, copy of a SWD M-10 type pistol. Pistol also received with a barrel extender (wrapped in black tape) which does attach to the threaded barrel (overall length attached is 20 7/8"). 13 (NYPD Lab. Report.) 14 that "certain characteristics of the firearm" 15 house thus 16 characteristics at the time of the bail hearing in this case on 17 May 5, 2010." 18 The government's accompanying letter stated found in the stash "differ from the Government's understanding of those (Government May 14 Letter at 1-2.) On May 16, defendants asked Judge McKenna to reconsider 19 his gun based denial of their bail motions "in light of dramatic 20 new evidence" 21 and was inoperable. 22 dated May 16, 2010, at 1.) 23 with Johnson, were indicted and charged with conspiring to possess 24 five kilograms and more of cocaine with intent to distribute, 25 violation of 21 U.S.C. 26 and 27 trafficking crime, and possessing a firearm in furtherance of such 28 a crime, 29 being felons in possession of a firearm, in violation of 18 U.S.C. 30 § carrying that the weapon in question was not a machine gun a (Letter from Richard B. Lind to Judge McKenna §§ firearm On May 18, English and Anderson, along 846, 841(a) (1), and 841(b) (1) (A); using during in violation of 18 U.S.C. 922 (g) (1). in and §§ in relation a drug- 924 (c) (1) (A) (i) and 2; and The case was assigned to Judge McMahon. 8 - to On May 20, 1 Judge McKenna 2 McMahon. 3 B. referred the reconsideration motions to Judge The Proceedings Before Judge McMahon At 4 the initial pretrial status conference before Judge 5 McMahon, the AUSA informed the court of the nature of the charges 6 and stated that the amount of cocaine involved was "approximately 7 27 kilograms. 8 Tr."), at 2.) English and Anderson asked the court to schedule a 9 bail hearing. After discussing possible dates for such a hearing, (Joint Hearing Transcript, June 9, 2010 n ("June 9 10 and determining that defendants had already been denied bail by 11 the magistrate judge and Judge McKenna, Judge McMahon said "I must 12 tell you in a 27-kilo case I don't think I've ever let anybody 13 out. You're free to come and make your pitch" (id. at 5) . On 14 July 20 and 28, the court bail hearings for 15 Anderson and English, 16 Hearing Transcript, July 20, 2010 ("Anderson Tr.")), his attorney 17 emphasized the new information as to the nature and inoperability 18 of the gun, arguing that both the magistrate 19 McKenna had denied bail on basis 20 representation that Anderson had in his closet a machine gun and a 21 silencer. 22 order entered 23 with 24 Anderson I s attorney to "forget about the gun. 25 take the gun into account. me. respectively. held the At Anderson's hearing Judge McMahon stated that II by Judge (Anderson McKenna, Tr. 3. ) of judge and Judge the she could not stating "You're However, Judge review the starting over McMahon told I'm not going to lim going to ignore it.1I - 9 - government's (Id. ) 1 After hearing argument, Judge McMahon denied Anderson's 2 application for bail. 3 crimes charged in the indictment, there is a statutory presumption 4 against bail, 5 rebut ted 6 Anderson posed both a danger to the community and, notwithstanding 7 his" incredibly strong" 8 flight: The court noted that, with respect to the and it concluded that the presumption "hasn't been in thi s case." (Id. at 18.) The proposed bail package court (id.), found a risk of 9 10 11 12 13 14 15 16 17 18 The nature and the circumstances of the crime auger against bail. The fact that the defendant is facing a 20 [-] year mandatory minimum sentence gives him a tremendous incentive to flee and augers against granting bail. The weight of the evidence against the defendant is a factor that is to be taken into consideration. Defense counsel suggested it is not an important factor. As far as this Court is concerned, it is one of the most important factors to consider. 19 20 21 22 23 24 The case against the defendant is incredibly strong. The fact that it's a triable case, from a lawyer's perspective, does not mean that it's not a strong case. Even the Court's assessment of the evidence, after seeing thousands upon thousands of these cases, it is a very strong case. 25 26 27 28 29 30 31 32 33 The history and characteristics of the defendant, including his family ties, employment, community ties and past conduct cuts both ways. The defendant has a large and incredibly supportive and loving family. He has ties. He's a life [long] resident of Queens. He has ties to the community. He has been engaged in employment. Those are positive factors. He has a history with law enforcement going back to 1995 . . . . 34 35 36 37 And so as far as I'm concerned, his prior history, his past conduct cancels out the positive factors, including family ties, employment and community ties. 38 39 40 The nature and the seriousness, the danger of the community or to individuals is manifest from the charge. Unlike Judge McKenna, I did not find it at - 10 - that all impossible to believe that someone who is, say, on electronic monitoring could not engage in further sale of narcotics. All you need is a telephone and access to a person or persons who are willing to participate in the crime. 1 2 3 4 5 6 (Anderson Tr. 16-18 (emphases added).) At 7 English I s detention hearing 8 July 28, 9 began by arguing that Judge McMahon could not engage in a de novo 10 consideration of whether to grant bail but could consider only how 11 the 12 findings, 13 Judge 14 II [w] hen Judge 15 based solely on the gun II 16 of 17 otherwise he would have given bail, 18 that it was a machine gun with a silencer ll 19 II [a] 20 machine gun was an inoperable pistol ll 21 that he had immediately asked Judge McKenna for reconsideration, 22 but as the case was now before Judge McMahon, following the filing 23 of the indictment, he sought reconsideration of the dangerousness 24 issue from Judge McMahon. 25 new (IIEnglish Tr. II) ), (see Hearing Transcript, 2010 information stating McKenna I s Judge that the he order. II had gun at (rd. days later 2.) McMahon Lind, McKenna1s IIreconsideration of Lind pointed out that it was II [w] i th regard to the issue i McKenna] the only Judge my client detained, (id. at 4) [Judge Richard B. affected sought McKenna ordered dangerousness, couple about his attorney, said that the only was the issue of government (id. (id. [the] at 3) said that at 4). issue, the i gun, and that so-called Lind stated (See id. at 5.) stated that she understood the new 26 information with respect to the gun and that she would not take 27 the gun into account 28 request for bail de novo (English Tr. 3) (see id. - 11 - i but she would consider the at 4). She pointed out that 1 "Judge McKenna and I are Judges of coordinate jurisdiction and I'm 2 not 3 English merely wanted reconsideration of Judge McKenna's order he 4 would have to seek it from Judge McKenna; if he wanted review of 5 Judge McKenna's order he would have to go to the Court of Appeals; 6 if he wanted a grant of bail by Judge McMahon, she would consider 7 the request as "a totally new application. 8 9 10 the Court of Appeals. (Id. 11 After hearing argument, presented both a flight at 3.) If She stated that if (Id. at 3-4.) Judge McMahon found that English sk and a safety risk, and thus ordered him detained: 11 12 13 14 15 16 17 18 19 20 21 22 This is a case in which the evidence is extraordinarily strong. The defendant was arrested with 10 kilograms of cocaine in his possession. His co-conspirators had cars that were equipped for drug dealing and one of them had a weapon indicating that there was the possibility of violence in connection with this particular incident. That, alone, would be enough for me to keep the defendant in. I acknowledge that this defendant has a strong bail package, he has substantial ties to the community; however, he is looking at, I think, a 20-year mandatory minimum. . . . 23 24 25 A 20-year mandatory minimum sentence which overcomes virtually any tie to the community and gives him an extraordinary incentive to flee. 26 27 28 29 30 31 32 33 34 35 The defendant's conviction for narcotics in the past is indeed an old conviction but it does not give the Court any comfort that the defendant was in fact convicted and sentenced to 10 years, however long he served for narcotics, and was then later arrested with 10 kilograms of cocaine in his possession and that suggests a strong possibility of recidivism notwithstanding the defendant's strong family ties to the community. The defendant tested positive for drugs[,] which raises the issue of non-appearance. 36 37 38 39 The Court concludes circumstances and especially the government's case and sentence which the defendant - 12 - that in all of the oi ven the strength of the mandatory minimum is facing, that there are no bail packages, even this extraordinarily strong bail packager,] that would guarantee his appearance, and I am denying bail. 1 2 3 4 (English Tr. 13-14 (emphases added).) II. 5 6 DISCUSSION English and Anderson have appealed from Judge McMahon's 7 detention orders and have moved in this Court for release on bail 8 arguing principally that Judge McMahon was required to defer to 9 findings made by Judge McKenna except to the extent that the new 10 information called those earlier findings into question; that the 11 district 12 applications; and that the record warrants their release on bail. 13 English also contends that the order for his detention should be 14 vacated because 15 required by 18 U.S.C. 16 we find no merit in defendants' contentions. 17 A. court was improperly it was § not "predisposed" against their bail accompanied by written findings 3142(i) (1). l as For the reasons that follow l The Statutory Framework 18 Section 3142 of Title 20 Act") 21 following a hearing in accordance with 22 officer finds that no condition or combination of conditions will 23 reasonably assure the appearance of the person as required and the 24 safety 1 18 U.S.C. §§ 3141-3156 of the Bail Reform Act 1984 see enacted as part 19 I of 18 1 ("Bail Reform requires that an accused be detained pending trial where of any other person and - 13 - the § 3142 (f) I community." I "the judicial 18 U.S.C. 3142 (e) (1) . liThe facts the judicial officer uses to support a 1 § 2 finding 3 combination of conditions will reasonably assure the safety of any 4 other person and the community shall 5 convincing evidence. 6 issued 3142 (e) (1), lithe 7 include written findings of fact 8 reasons for the detention 9 Subsection pursuant under § to subsection Id. II of that be § condition or In a judicial detention order officer shall and a written statement of the 3142 provides is 12 probable 13 committed certain 14 which 15 prescribed 16 seq.) ," 18 U.S.C. 17 §] 18 duly constituted grand jury conclusively establishes the existence 19 of probable 20 presumptions set forth in 21 776 F.2d 51, 55 (2d Cir. 1985). a maximum 924 (c)," in id. types term the of of imprisonment including of "an offense ten years Act (21 or more U. S. C. 801 for is et 3142 (e) (3) (A), or "an offense under [18 U.S.C. II [A]n indictment returned by a for the purpose of § 3142(e)." triggering the rebut table United States v. Contreras, Where there is such a presumption, 22 of the person seeking bail Substances 3142 (e) (3) (B) . cause that offenses, Controlled § § finding combination a conditions will reasonably assure" against flight or danger where a or there 11 supports condition that rebuttable II no 3142 (i) (1) . § 10 cause that no supported by clear and 3142 (f) (2) . § II Id. (e) presumption (e) the defendant IIbears a 23 limited burden of production--not a burden of persuasion--to rebut 24 that presumption by coming forward with evidence that he does not 25 pose 26 States v. Mercedes, a danger to the community or a 254 F.3d 433, 436 - 14 - risk of flight. (2d Cir. 2001). II United Satisfying 1 the burden 2 favoring detention; 3 those weighed by the district court." 4 lithe government retains the ultimate burden of persuasion by clear 5 and convincing evidence that the defendant presents a danger to 6 the community," and "by the lesser standard of a preponderance of 7 the evidence that the defendant presents a risk of flight. 8 9 of production not eliminate the presumption it "remains a factor to be considered among Subsection government, does (f) of § Id. At all times, however, 3142 provides that, on motion of the a hearing must be held with respect to a detention 10 request in a case that triggers the 11 18 U.S.C. 12 that 13 judicial officer perceives a serious risk of flight, 14 hearing may be held lIupon the judicial officer's own motion. § such 15 Id. 1I § 3142(e) (3) presumption, 3142 (f) (1), or in a case that involves lIa serious risk person will The factors that the § 3142 (f) (2) (A). Where a detention II judicial off icer must consider safety of any other person and the community, II include lithe nature 19 and circumstances of the offense charged, 20 offense 21 weight 22 characteristics of the person,lI including his IIphysical and mental 23 condition, family ties, employment, financial resources, length of 24 residence in the community, 25 relating to drug or alcohol abuse, 26 concerning appearance at court proceedings" the evidence against or the release that in 18 of violence, II of II reasonably assure the appearance of the person as required and the of conditions Id. 17 crime are the determining a there id. 16 is whether flee," will including whether the involves person" i a firearm; lithe history lithe and community ties, past conduct, history 15 - criminal history, i and record and "the nature and 1 seriousness 2 would be 3 The same factors are to be considered in determining "whether the 4 presumptions of dangerousness and flight 5 States v. Mercedes, 254 F.3d at 436. 6 of the danger to any person posed by the person's release. or the community that 18 U.S.C. II § are rebutted. 3142 (g). United II We review a district court's findings as to the accused's 7 risk of 8 error. 9 Cir. flight and potential danger to the See, 1995) community for clear , United States v. Ferranti, 66 F.3d 540, 542 (danger to the community) i (2d United States v. Melendez- 10 Carrion, 820 F. 2d 56, 61 11 there are two permissible views of the evidence, the factfinder's 12 choice between them cannot be clearly erroneous. 13 Bessemer City, 470 U.S. 564, 574 (1985). 14 de 15 plenary review if it rests on a predicate finding which reflects a 16 misperception of a legal rule applicable to the particular factor 17 involved," United States v. 18 cert. denied, 484 U.S. 840 19 20 B. novo, and lithe (2d Cir. 1987) court's ultimate Shakur, (risk of flight). "Where Anderson v. II We review rulings of law finding may be 817 F.2d 189, subject 197 to (2d Cir.), (1987). The Contention that Judge McMahon Was Barred from Considering Flight Risk 21 Defendants' principal contention on these appeals is that 22 because Judge McKenna had stated that the bail packages proffered 23 by defendants were sufficient to assure against 24 and that he would grant their bail motions were it not for the 25 gun, Judge McMahon was precluded from considering the 26 risk of flight. We rej ect this contention. - 16 - risk of flight, issue of A district judge 1 before whom a bail motion is properly made should consider the 2 subsection 3 § 3142. (g) and make the determinations required by We see no flawed procedure here. First, 4 factors Judge McMahon's view that she could not entertain 5 an appeal from the orders entered by Judge McKenna was correct. 6 judge of lithe court having original jurisdiction over the offense" 7 may" [r] eview fl 8 ordered detained by a magistrate judge, or by a person other than 9 a judge of a court having original jurisdiction over the offense a detention order only where the "person [wa] s 10 and other than a Federal appellate court." 11 (emphases added). 12 judges of the court having original jurisdiction over defendants' 13 offenses, neither is authorized to review a detention order issued 14 by the other. 15 18 U. S. C. A § 3145 (b) As both Judge McMahon and Judge McKenna are Second, the reconsideration motions made to Judge McKenna 16 were properly referred to Judge McMahon. "In a criminal case, 17 after an indictment has been returned by the Grand Jury . . . , 18 the magistrate 19 judge in open court from the criminal wheel, and assign the case 20 to said judge for all purposes thereafter." 21 8(a) judge on duty will randomly draw the name of a S.D.N.Y. Local Rule (emphasis added). 22 Finally, we see nothing in the Bail Reform Act to suggest 23 that a judge to whom a criminal case is assigned for all purposes 24 may not fully consider all of the 25 with a motion for pretrial release. 26 when such a judge perceives a serious risk that a defendant will - 17 § 3142(g) factors when presented Indeed, as set out above, 1 flee, he or she is authorized to convene a detention hearing "upon 2 [his or her] own motion." 3 this provision is the concept that the judge in charge of the case 4 is not bound by prior rulings as to risk of flight. 18 U.S.C. 3142 (f) (2) (A). § Implicit in 5 Accordingly, we reject defendants' contentions that Judge 6 McMahon was bound by Judge McKenna's view that the bail packages 7 proffered 8 against the risks that they would flee. 9 C. by English and Anderson were sufficient to assure English's Contention that the Writing Requirement Was Not Met 10 We also rej ect English's contention that his detention 11 order should be vacated because it was not accompanied by written 12 findings, 13 published 14 requirement in that section, we have determined that a transcript 15 of 16 requirement in the context of a bail revocation proceeding under 17 18 U.S.C. 18 Cir. 1988). 19 to what 20 § 21 court's findings and reasons for ordering detention be stated in 22 writing should be equally applicable to an order revoking release 23 pursuant 24 individual is detained without bail pursuant to § 25 the A requirement the as required by opinion, court's § a result on and the While we have not, contours reasons will revocation order must We held that § is 3148, the of Davis, same," § 845 845 contain, the satisfy See United States v. Davis, Although we noted in Davis that 3142 (i) (1) . to ruled findings 3148. 3142 (i) (1). § § we a in a writing writing 845 F.2d 412 (2d 3148 is silent as found guidance in 3142 (i) (1) 's requirement that the F.2d at 415, F.2d at - 18 - 414. for II [w]hether an 3142 or § 3148, of 1 written findings is generally intended to ensure that the district 2 court's reasons for its decision are sufficiently clear to permit 3 meaningful appellate review, and in remanding for such findings in 4 Davis 5 reasons for revocation and detention 6 transcript of the proceedings,1I id. at 415. 7 Barth, 8 probationer's due process entitlement to "'a written statement by 9 the factfinder as to the evidence relied on and the reasons for we stated that 899 F.2d 199, lithe 201 district court's findings and its may be embodied in a (2d Cir. 1990) Cf. United States v. (transcript satisfies a 10 revoking probation'lI 11 (1985))), cert. denied, 498 U.S. 1083 (1991). 12 Here, as (quoting Black v. Romano, in Davis, we see no 471 U.S. 606, 612 meaningful distinction 13 between detention orders and bail revocation orders insofar as the 14 need 15 accord with Davis, that where the court's findings and reasons for 16 issuing 17 transcript of 18 satisfied. The transcripts in the present case met this standard. 19 D. 20 for written a findings is concerned. detention order are the hearing, And we clearly set the out requirement of conclude, in in the written a writing is The Alleged Bias Defendants' contention that Judge McMahon was 21 "predisposed ll to deny their bail motions is based principally on 22 the judge's statement at the June 9 status conference that "I must 23 tell you in a 27-kilo case I don't think I've ever let anybody 24 out" 25 review the court's comments and rulings (June 9 Tr. 5). In considering a claim of judicial bias, we - 19 - in the context of the 1 record as a whole, see, 2 343 3 "expressions of impatience, 4 anger" would not establish bias or partiality, 5 ==~~, (2d Cir. 1993) United States v. Rosa, 11 F.3d 315, ~, cert. denied, I 511 U.S. 1042 dissatisfaction, (1994) and even i annoyance, and even Liteky v. United 510 U.S. 540, 555-56 (1994). We see no basis in the above-quoted statement or any other 6 7 statement by 8 combination, 9 bias. Judge for Rather, an McMahon, whether inference that she viewed held singly any or in impermissible the record shows that when English and Anderson 10 requested a bail hearing, 11 A separate hearing was eventually held for each defendant. 12 each 13 laboratory evidence revealed that what had been found in the stash 14 house 15 represented in opposition to the prior bail motions, Judge McMahon 16 promptly stated that 17 defendant has called to our attention any defense argument that 18 was 19 proffered 20 respectively, 21 "incredibly 22 concluded, 23 outweighed the proffered bail packages in the analysis of flight 24 risk and community safety. 25 the facts before the court and were fully explained on the record. 26 The record does not support defendants' claims of bias. hearing, were not addressing not a the machine gun Judge English as she and that a and McMahon Anderson "extraordinarily strong" point the (Anderson silencer, as had was entitled been Neither reviewed the bail packages and strong" Tr. At after-acquired she would not consider the gun. considered. by she immediately sought to schedule it. noted (English 18). to that Judge do, that they Tr. 14) McMahon other were, and simply factors Her reasons were explicitly tied to 20 - 1 E. Finally, 2 as to the merits, neither defendant makes any 3 concrete argument as to error in the district court! s findings, 4 and we see no basis on which to overturn them. 5 Anderson are charged with offenses under 18 U.S.C. 6 charge triggers the 7 charged with drug-trafficking conspiracy in violation of 21 U.S.C. 8 § 9 them to mandatory minimum prison terms of 20 years i that charge 846 which, § Both English and § 924(c) 3142(e) presumption against bail. that i Both are in light of their prior felony convictions, exposes 10 too triggers the presumption against bail, 11 each defendant seems quite strong. 12 As set out in greater detail and the case against in Part I. B. above, Judge 13 McMahon considered the 14 above--that 15 McMahon! s 16 flight 17 reflected in her findings. 18 that 19 from the charge/!! and that the proposal for electronic monitoring 20 did not eliminate the danger that he would 1!engage in further sale 21 of narcotics!! by telephone with a willing collaborator. 22 Tr. 18.) 23 codefendants 24 stated that !!that/ alone, would be enough for me to keep [English] 25 inn were to 3142(g) factors--summarized in Part II.A. relevant findings than § to each defendant. Although Judge were more extensive with respect to risk of danger to the community, both concerns With respect to Anderson, are she noted nthe danger of the community or to individuals is manifest (Anderson As to English, Judge McMahon pointed out that he and his were (English Tr. equipped for drug dealing and violence; she 13); and she found that his record suggested a - 21 - 1 If strong possibility of recidi vism lf (id.) - -plainly a reference to 2 the danger of continued narcotics t ficking, not to the risk of 3 flight. 4 We conclude that Judge McMahon's findings were amply 5 supported by the evidence and that her orders of detention were 6 proper substantially for the reasons stated on the record. CONCLUSION 7 We 8 have considered all of defendants I contentions in 9 support of their appeals and of their motions to have this Court 10 grant them release on bail, and we have found them to be without 11 merit. 12 motions are denied. The orders of the district court are affirmed. - 22 - The bail
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