Opposition Brief — Rivera v. United States

No. 93-1095

Jn the Supreme Court of the Giited States |

OCTOBER TERM, 1998

RALPH RIVERA, PETITIONER

ev.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

THOMAS M. GANNON

Attorney

Department of Justice

Washington, D.C. 205380

(202) 514-2217

QUESTION PRESENTED

Whether petitioner’s pretrial detention violated the

Due Process Clause.

(1)

a a ee eee

TABLE OF CONTENTS

Page

I is dal cical eld Dados cadiclcasabeneoeuctevereosesousees ]

a sdusebeumveuoneneovece ]

I erenvevecs 2

a ceviincbubedepcoveneconies 8

i on ssssseuepeusovoccese 14

TABLE OF AUTHORITIES

Cases:

Bell v. Wolfish, 441 U.S. 520 (1979) vce cccccccececeeeeceeeeeee 9, 10

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............ 4)

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ....... of)

Lane v. Williams, 455 U.S. 624 (1982) ......ccccccecceccecseeeeee 9

Murphy v. Hunt, 455 U.S. 478 (1982) .......ccccccccccesseeeeeess 8,9

Schall v. Martin, 467 U.S. 253 (1984) ........ccccccccccseceeeee 10

United States v. Accetturo, 783 F.2d 382 (3d Cir.

i. sssesnesusdoveponecorers 12

United States v. Chimurenga, 760 F.2d 400 (2d Cir.

i semueusonvones 11

United States v. Denogean, No, 93-2282, 1993 WL 483018

I csospunnennenenence 12

United States v. Gelfuso, 838 F.2d 358 (9th Cir. 1988)... 10, 12

United States v. Gonzales Claudio, 806 F.2d 334 (2d

Cir.), cert. dismissed, 479 U.S. 978 (1986) ..........0ccc000 10, 11, 13

United States v. Infelise, 934 F.2d 103 (7th Cir. 1991)... 12

United States v. Melendez-Carrion, 820 F.2d 56 (2d Cir.

EEE SESS LEI SIE TOT ED ll

United States v. Millan:

S17 F.. Supp. 1072 (S.D.N.Y. 1998) ....ccccccccccscccecceevoees 4

S17 F. Supp. 1086 (S.D.N.Y. 1908) .......ccccccccvevceverevees 5

United States vy. Millan-Colon, 829 F. Supp. 620

I aan cali ceca cneecetaictessbepesvoneevorceete 6

United States v. Ojeda Rios, 846 F.2d 167 (2d Cir.

ES ae 10

IV

Cases—Continued: Page

United States v. Orena, 986 F.2d 628 (2d Cir. 1993) ..... 10

United States v. Quartermaine, 913 F.2d 910 (lith Cir.

TUDE sistwvinntsereiistiecnciinnimediniiibitinsababinnubadsti iii 10-11, 12

United States v. Salerno, 481 U.S. 739 J: ne 8, 9, 10, 12

United States v. Theron, 782 F.2d 1510 (10th Cir.

USD cccescanenamesesaneaniinisintshinaluibcethngesiiiiasiiinamneittic sda es 12

United States v. Zannino, 798 F.2d 544 (lst Cir.

PTE dmrsidtildenantotnaiciibliaaammmeanteiaaaamiied eee 11, 12

Wisniewski v. United States, 353 U.S. 901 (1957) .......... 13

Constitution and statutes:

U.S. Const. Amend. V (Due Process Clause) .. 5, 6, 8, 9, 10, 12, 13

18 U.S.C. 3142(e) (Supp. IV 1992) .oocccccccccccceseoeeec 2, 12

18 U.S.C. 3142(g) (Supp. IV 1992) o.o.ccccccccccceeeee--, 7

erly ay ETE DOTS 2

EST Ce et ne

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1095

RALPH RIVERA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. Al-

A23, is reported at 4 F.3d 1038. The opinion of the

district court, Pet. App. A24-A28, is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 1, 1993. On November 29, 1993, Justice

Thomas extended the time for filing a petition for a

writ of certiorari to and including January 28, 1994.

The petition for a writ of certiorari was filed on

January 6, 1994. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Petitioner was arrested on August 1, 1991, on a

complaint charging him and 41 others with a number

of drug offenses, including participating in a con-

tinuing criminal enterprise, in violation of 21 U.S.C.

848. He was detained prior to trial pursuant to 18

U.S.C. 3142(e) (Supp. IV 1992), on the basis of a

judicial assessment that he posed an unacceptable

risk of flight. Petitioner’s trial commenced on March

9, 1993, but ended in a mistrial that was declared on

April 16, 1993. On May 21, 1993, the district court

ordered petitioner released on bail subject to a series

of conditions. Pet. App. A24-A28. On the govern-

ment’s appeal of the release order, the court of appeals

reversed. Jd. at Al-A23. Petitioner’s retrial began on

November 15, 1993, and is currently in progress.

1. On August 1, 1991, petitioner and co-defendant

Eric Millan were arrested and charged with partici-

pating in a conspiracy to distribute heroin. The

government alleged that Millan was the leader of an

organization that distributed heroin under the name

“Blue Thunder” in New York City, and that peti-

tioner was his second-in-command and shared respon-

sibility for the day-to-day supervision of the organiza-

tion’s activities. The indictment charged that peti-

tioner and Millan had participated in a continuing

criminal enterprise, in violation of 21 U.S.C. 848. If

convicted under that statute, petitioner faces a

mandatory 20-year sentence and a maximum sentence

of life imprisonment. Pet. App. A3; see 21 U.S.C.

848(a)-(d).

Petitioner has been detained at all times since his

arrest. After a detention hearing on August 6, 1991, a

s

magistrate judge ordered petitioner detained because

he presented a risk of flight. Pet. App. A3. Petitioner

made two bail applications after his initial detention

hearing. On the first occasion, United States Dis-

trict Judge Shirley Wohl Kram, to whom petitioner’s

case was assigned, referred the application to a

magistrate judge, who on May 19, 1992, affirmed the

original detention order. /bid.

On the second occasion, on December 22,1992, a

different magistrate judge denied petitioner's bail

proposal. The magistrate judge noted that petitioner

had not identified any circumstances warranting a

departure from the findings supporting the initial

detention order. Because Judge Kram was not avail-

able to hear petitioner’s significantly delayed appeal

of the magistrate’s ruling, it was heard by United

States District Judge Sonia Sotomayor. Pet. App.

A3-A4. After a hearing on February 18, 1993, Judge

Sotomayor concluded that the government had amply

demonstrated that petitioner continued to pose a risk

of flight and a danger to the community. The judge

found that petitioner was charged with a crime

requiring a sentence of at least ten years’ imprison-

ment if he was convicted; that bench warrants had

been issued for petitioner’s arrest in each of three

prior cases because he had failed to appear in court;

that petitioner no longer had significant ties to the

community; that petitioner had traveled abroad and

had ties to communities outside New York City; and

that because of petitioner’s role in the Blue Thunder

organization, he had access to sufficient funds to

facilitate flight and reimburse bail sureties if he

decided to flee. Jd. at A4.

4

On March 9, 1993, attorneys for the parties made

opening statements in the trial of petitioner, Millan,

and ten co-defendants before Judge Kram. On March

12, 1993, the government advised the district court

that three agents involved in the investigation of the

ease had been arrested for narcotics trafficking. The

court adjourned the trial and held a hearing to

determine the effect of that information on petition-

er’s case. The court eventually found that the alleged

misconduct by the arrested agents did not involve the

investigation that resulted in petitioner’s indictment,

see United States v. Millan, 817 F. Supp. 1072, 1078

(S.D.N.Y. 1993), but also ruled (id. at 1081-1084) that

the defense could cross-examine witnesses about the

arrests because the government, in its opening

statement, had referred to undercover participation in

the Millan investigation by one of the arrested

agents. Pet. App. A4-A5.

On March 23, 1993, the government advised Judge

Kram that Millan’s attorney, Michael B. Pollack, was

about to be indicted on felony charges in the District

of New Jersey. Although a colleague of Dietrich L.

Snell, the prosecutor in petitioner’s case, had known

of the pending indictment in January 1993, he appar-

ently did not inform Snell of the situation until

March. After Millan learned of Pollack’s situation,

which Pollack had not previously revealed to him,

Millan announced his intention to retain new counsel

and requested a severance from the continuing trial

of petitioner and the other co-defendants. The dis-

trict court granted the application for a severance and

declared a mistrial as to Millan. Subsequently, how-

ever, Millan decided to continue with Pollack as his

attorney and to seek new counsel only if it became

5

necessary. Pollack was convicted on July 15, 1993.

Pet. App. A5.

On April 14, 1993, the district court learned that

between $50,000 and $80,000 that one of the arrested

agents seized during the arrest of one of the

defendants in petitioner’s case was missing. In light

of that evidence, petitioner, Millan, and several other

co-defendants moved for a mistrial. Pet. App. A5. See

United States vy. Millan, 817 F. Supp. 1086, 1088

(S.D.N.Y. 1993). The court noted that “the entire

vouchering process in this case is now suspect” and

that further allegations of misconduct might arise.

Id. at 1089. On that basis, the court granted the

mistrial motions on April 16, 1993. Jd. at 1090.

Petitioner moved to bar retrial on double jeopardy

grounds. Pet. App. A5-A6. He also sought release on

bail pending retrial, contending that his continued

detention violated the Due Process Clause. The

district court concluded that the period of pretrial

delay had exceeded constitutional limits. Pet. App.

A24-A28. On May 21, 1993, the district court ordered

petitioner released on several conditions. Petitioner

was required to post a $1 million personal recog-

nizance bond secured by $500,000 in real property and

the signatures of six financially responsible individ-

uals; refrain from associating or communicating with

any of his co-defendants except as needed to prepare

his defense; not commit any crimes; report weekly by

telephone to pretrial services; submit to home deten-

tion and electronic monitoring; and surrender his

passport and all other travel documents. /d. at A27-

A28; see id. at A6. On June 30, 1993, the district court

granted the government’s request for a stay of the

order pending the outcome of the appeal. Jd. at A7.

6

On July 30, 1993, the district court denied the

pending motion to bar retrial on double jeopardy

grounds and set October 12, 1993, as the date for the

beginning of the retrial in the case. United States v.

Millan-Colon, 829 F. Supp. 620, 637 (S.D.N.Y. 1993).

The court found no indication that the government

had intentionally provoked the defendants into moving

for a mistrial, id. at 628, and also determined that

despite the investigation of police misconduct that

affected the Millan investigation, id. at 634, the trial

could “resume without fear of further disruption

stemming from unforeseen sources.” Pet. App. A7.

Petitioner’s retrial began on November 15, 1993, and

is expected to end in April 1994. Pet. 5.

2. The court of appeals reversed. Pet. App. Al-A23.

The court held that petitioner’s pretrial detention did

not violate the Due Process Clause. Although the

court recognized that the length of petitioner’s

detention weighed in favor of release (see Pet. App.

A10-A11),’ it found that because defense counsel’s

requests for adjournments had largely accounted for

the first 19 months of the delay, petitioner bore

“primary responsibility * * * tor the delay between

{his} arrest and retrial,” and the length of his

' The court rejected petitioner’s “highly speculative”

argument that an appeal of the district court’s denial of his

motion to bar retrial on double jeopardy grounds would delay

retrial to the point where due process was plainly violated.

Pet. App. All-A1l2. Noting that double jeopardy does not bar

retrial unless the government intentionally provoked a mis-

trial, and that the record did not suggest that such a provoca-

tion had occurred, the court reasoned that the district court

could proceed to trial, despite a pending interlocutory double

jeopardy appeal, when the appeal was frivolous.

7

detention therefore weighed in his favor “to a

significantly lesser extent than the district court

[had] concluded.” Jd. at A12, Al4.

The court observed that the district court had not

found that petitioner no longer posed a risk of flight,

but rather “regarded the risk * * *, however serious,

to be outweighed by the other applicable factors.” Pet.

App. Al5. The court of appeals itself concluded that

petitioner “present[ed] a high risk of flight.” Jd. at

Al6.

Noting that the district court’s ruling as to the

danger petitioner posed to the community was

“entirely conclusory,” Pet. App. A17, the court can-

vassed petitioner’s criminal] record, which included

two narcotics convictions, a conviction for criminally

negligent homicide, and extensive alleged criminal

activity during the probationary period following his

homicide conviction. The court concluded that “the

district court did not adequately examine the issue of

dangerousness with respect to [petitioner],” and that

petitioner “would pose a very serious danger to the

community in the event of [his] pretrial release on

bail.” Jd. at A21.

Finally, the court considered whether any condi-

tions of release would reasonably assure petitioner’s

appearance at trial and the safety of the community.

See 18 U.S.C. 3142(g) (Supp. IV 1992). Remarking

that procedures for electronic surveillance could be

circumvented, the court found that petitioner’s

appearance and the protection of the community “can

be assured only by continued detention.” Pet. App.

A22. In light of all the factors it had reviewed, the

court “discernfed] no constitutional impediment -to

[petitioner’s! continued detention.” Jd. at A23.

8

3. On January 7, 1994, petitioner’s application for

release from pretrial detention was presented to

Justice Thomas, who denied the application. On Jan-

uary 24, 1994, petitioner’s application for a stay ad-

dressed to Justice Blackmun and referred by him to

the Court was denied. Rivera v. United States, No.

A-550 (Jan. 24, 1994).?

ARGUMENT

Petitioner contends (Pet. 5-11) that this Court

should grant review because the court of appeals

wrongly decided a question left open in United States

v. Salerno, 481 U.S. 739, 747 n.4 (1987), 7.e., “the point

at which [pretrial] detention in a particular case

might become excessively prolonged,” and because

the courts of appeals are divided regarding when such

detention becomes so excessive as to violate the Due

Process Clause.

1. At the outset, we note that petitioner’s claim is

very likely to become moot in the near future.

Petitioner’s trial began on November 15, 1993, and is

expected to end in April 1994. Pet. 5. If he is

acquitted, he will of course be released from detention

on the instant charges. If he is convicted, he will be

held pursuant to a judgment of conviction, rather than

pursuant to a pretrial detention order. In either

event, the claim petitioner raises will be moot. See,

e.g., Murphy v. Hunt, 455 U.S. 478, 482-483 (1982)

(criminal defendant’s suit challenging state court’s

denial of request for pretrial bail was moot after

* Petitioner’s co-defendant, Eric Millan, who also has been

subject to pretrial detention since his arrest, has also filed a

petition for a writ of certiorari. See Millan v. United States,

petition for cert. pending, No. 93-7623 (filed Jan. 21, 1994).

9

defendant was convicted in state court). Of course, it

is possible that petitiuner’s trial will not end in

acquittal or conviction but in a mistrial, and that his

retrial will be postponed long enough for this Court to

consider and decide the case. Yet only that relatively

unlikely sequence of events will prevent this case

from becoming moot long before the Court could

render a decision on the merits. Accordingly, this

case is not a suitable vehicle for review.’

2. In any event, the decision of the court of appeals

was correct. 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.” Bell v.

Wolfish, 441 U.S. 520, 535 (1979); see also United

States v. Salerno, 481 U.S. at 746 (pretrial detention

must be “regulatory, not penal”). Absent an express

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.

Bell v. Wolfish, 441 U.S. at 5388 (quoting Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 169 (1963)). Pre-

trial detention of a defendant, when of reasonable

duration, serves important regulatory purposes,

including the prevention of flight and the protection

® Petitioner’s claim is not “capable of repetition, yet evading

review” because of the speculative possibility that petitioner

may be subject to a future prosecution, that bail will be denied,

and that he will be detained pretrial for an extended period.

See City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983); Lane

v. Williams, 455 U.S. 624, 633 n.13 (1982); Murphy v. Hunt, 455

U.S. at 482-483.

10

of the community from a potentially dangerous indi-

vidual. Salerno, 481 U.S. at 747-749; Schall v. Martin,

467 U.S. 253, 264 (1984) (prevention of danger to

community is legitimate regulatory goal); Bell v.

Wolfish, 441 U.S. at 534 (government has legitimate

interest in preventing flight by defendant). When,

however, detention becomes “excessively prolonged,”

it may no longer be reasonable in relation to the

regulatory goals of detention, in which event the

detention may violate the Due Process Clause. See

Salerno, 481 U.S. at 747 n.4; United States v. Gelfuso,

838 F.2d 358, 360 (9th Cir. 1988); United States v.

Gonzales Claudio, 806 F.2d 334, 339 (2d Cir.), cert.

dismissed, 479 U.S. 978 (1986).

The determination whether the length of pretrial

detention has become constitutionally excessive rests

on three factors: (1) the length of the detention; (2)

the extent of the government’s responsibility for the

delay of the trial; and (3) the strength of the evidence

on which the detention was based, 7.e., the evidence

concerning the risk of the defendant’s flight and the

danger he poses to the safety of any other person or

the community. See United States v. Orena, 986 F.2d

628, 630 (2d Cir. 1993) (stating factors and applying

test to dangerousness); United States v. Ojeda Rios,

846 F.2d 167, 169 (2d Cir. 1988) (applying test to risk of

flight and dangerousness); United States v. Gelfuso,

838 F.2d at 359 (considering length of detention and

government’s responsibility for delay). Although a

district court’s evaluation of the pertinent factors is

normally reviewed for clear error, see, e.g., United

States v. Quartermaine, 913 F.2d 910, 915 (11th Cir.

1990) (purely factual findings underlying orders

granting or denying detention); United States v.

11

Melendez-Carrion, 820 F.2d 56, 60 (2d Cir. 1987)

(government responsibility for delay); United States

v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985)

(danger to community and risk of flight), a determina-

tion as to whether the continued detention of a

defendant alleged to pose a risk of flight or a danger to

the community violates due process raises a legal

question that is subject to plenary review. See

United States v. Zannino, 798 F.2d 544, 546 (1st Cir.

1986); ef. Quartermaine, 913 F.2d at 915; Gonzales

Claudio, 806 F.2d at 343. #3

The court of appeals correctly applied the factors

bearing on whether a period of pretrial detention is

constitutionally excessive. Although petitioner had

been detained for a significant period, the court

properly discounted the length of that detention,

because the first 19 months of it were largely

attributable to defense counsel] adjournments. Thus,

petitioner himself was primarily responsible for the

delay between his arrest and retrial. See Pet. App.

Al2, Al4.

Judge Sotomayor had previously found that peti-

tioner was exposed to a lengthy term of imprison-

ment, that he had failed to appear in court in each of

three prior cases, that he no longer had significant

community ties, that he had traveled abroad and had

ties to other communities, and that he had the

resources to flee. See Pet. App. A4. On the basis of

those facts, the court of appeals was obviously justi-

fied in finding (id. at A16) that petitioner presented a

high risk of flight.

In light of petitioner’s extensive criminal record,

including two narcotics convictions and a homicide

conviction, the court likewise reasonably concluded

12

that petitioner. was also a danger to the community.

Pet. App. A21. Finally, because, as the court accu-

rately noted, electronic surveillance measures can be

circumvented, the court reasonably determined that

only continued detention could assure petitioner’s

presence at trial and prevent danger to the commu-

nity. Jd. at A22. The court of appeals’ careful, fact-

intensive evaluation of the factors pertinent to

petitioner’s application for release does not warrant

this Court’s review.

3. Petitioner is mistaken when he asserts (Pet. 7-

11) that review is warranted because of a conflict

between the decision below and decisions of other

federal courts. Most of the published appellate deci-

sions cited by petitioner found that the period of

detention in question did not violate the Due Process

Clause. See United States v. Zannino, 798 F.2d at

549; United States v. Accetturo, 783 F.2d 382, 388 (3d

Cir. 1986); United States v. Infelise, 934 F.2d 103, 105

(7th Cir. 1991); United States v. Gelfuso, 838 F.2d at

359; United States v. Quartermaine, 913 F.2d at 918.‘

The remaining decision, United States v. Theron, 782

F.2d 1510, 1516 (10th Cir. 1986), ordered that a trial be

held because continued detention would be unlawful,

but it based that holding on a construction of the

Speedy Trial Act, not the Due Process Clause.

Moreover, Theron was decided without the benefit of

this Court’s views on the constitutionality of 18

U.S.C. 3142(e), as set forth in Salerno, 481 U.S. at

vaT- 149. Consequently, none of the appellate deci-

4 One case relied on a petitioner, United States v.

Denogean, No. 93-2282, 1993 WL 483018 (10th Cir. Nov. 24,

1993), is an unpublished decision that has no precedential value,

even in the Tenth Circuit. See id. at 2 n.1.

13

sions cited by petitioner conflict with the Second

Circuit’s decision in this case.°

In any event, the question whether a given period of

pretrial detention violates the Due Process Clause

turns on whether, in each case, the relevant factors

establish that the period of pretrial detention is

punitive. No court of appeals has held that any

particular period of time in pretrial detention, apart

from the other relevant factors, can establish a

violation of the Due Process Clause. Accordingly,

even if other courts of appeals had reached the

conclusion that a period of pretrial deterition equal to

or shorter than the period at issue here violated the

Due Process Clause, that conclusion would not con-

flict with the Second Circuit’s conclusion that, on the

facts of this case, the period of pretrial detention is

not excessive.

* Any disagreement between the decision below and other

decisions of the Second Circuit, e.g., United States v. Gonzales

Claudio, 806 F.2d at 342, is for that court to resolve. See

Wisniewski v. United States, 353 U.S. 901, 901-902 (1957).

Likewise, further review is not warranted to consider the con-

flict, if any, between the decision below and the various district

court decisions cited by petitioner. See Pet. 9-11.

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Drew S. Days, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

THOMAS M. GANNON

Attorney

MARCH 1994