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United States v. Rush

United States District Court, E.D. Missouri, Eastern Division

December 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TIMOTHY LAMONT RUSH (2), Defendant.

          REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

          SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE.

         All pretrial matters in this case have been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C.§636(b). On October 11, 2017, this matter came before the Court for a hearing on Defendant Timothy Rush's Second Motion to Reconsider detention and for release pending trial (Doc. 468 & 506), which is opposed by the United States. (Doc. 473 & 503). Rush contends evidence that was not available at the time of his initial detention hearing disclosed during the course of this case entitles him to pretrial release under the Bail Reform Act. In the alternative, Rush contends his pretrial detention, which currently stands at 44 months, has become unconstitutionally excessive. For the reasons set out below, I find that Rush is not entitled to relief under the Bail Reform Act but is entitled to pretrial release on due process grounds.

         I. Pretrial Release Under the Bail Reform Act

         Under the Bail Reform Act, a judicial officer may reopen a 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 [defendant's appearance] as required and the safety of any other person and the community.” 18 U.S.C. §3142(f). In determining whether there are conditions of release that will reasonably assure the safety of the community and the appearance of the defendant, the Court must consider (1) the nature and circumstances of the offense charged, including whether the offense involves a controlled substance, firearm, explosive or destructive device; (2) the weight of the evidence against the person; (3) the history and characteristics of the person including, among other things, the person's character, length of residence in the community, past conduct, history relating to drug or alcohol abuse, criminal history, record concerning appearance at court proceedings, and whether at the time of the current offense or arrest the person was on probation, on parole, or on other release pending completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. §3142(g).

         Under the Bail Reform Act, the United States has the burden of establishing by clear and convincing evidence that there are no conditions that will reasonably assure the safety of the community and, by a preponderance of the evidence, that there are no conditions that will reasonably assure the defendant's appearance. However, because Timothy Rush was accused in an indictment of violating the Controlled Substances Act and faced a maximum prison term of ten years or more, the United States was entitled to a rebuttable presumption that no condition or combination of conditions would reasonably assure Rush's appearance and the safety of the community. 18 U.S.C. §3142(e)(3). In light of this presumption, Rush had the burden of producing some evidence that there were conditions of release which would reasonably assure he would not pose a danger to the community and would not flee. United States v. Abad, 350 F.3d 793, 797 (8th Cir. 2003). However, even if Rush produced evidence sufficient to rebut the presumption, the statutory presumption would not disappear; rather, the court must consider the presumption along with all other evidence and determine whether the evidence as a whole supports pretrial detention. Id.

         The undersigned applied the foregoing factors and ultimately granted the United States' motion for pretrial detention because, notwithstanding defendant's strong familial and community ties, an order of detention was appropriate when the rebuttable presumption was considered together with Rush's history and personal characteristics. See Doc. 41. Specifically, as the detention order noted, although Rush provided some financial support to his mother and had strong family and community ties, Rush was unemployed; used heroin on a weekly basis; and had an extensive criminal history dating back to 1982 that included two prior federal drug convictions. Rush's criminal history also reflected that Rush was on parole at the time of the instant charges and reflected a poor history of compliance while on supervision, including a history of absconding from supervision.

         Rush contends that evidence disclosed by the United States in the years since the initial order of detention has a material bearing on the issue of whether there are conditions of release that will reasonably assure his appearance and the safety of any other person and the community.” 18 U.S.C. §3142(f). The evidence relied on by Rush was the subject of a Franks hearing that spanned nine hearing days held over a period of several months.[1] More specifically, Rush and his co-defendants have argued that evidence presented during the Franks hearing demonstrates that the application for the Title III wiretap of Defendant Gatling's telephone, which served as the cornerstone of the United States' investigation into Rush and his co-defendants, contained false statements and material omissions that deprived the warrant authorizing the wiretap of probable cause. As such, defendants contend, all electronic surveillance evidence seized as a result of the wiretap, including evidence seized from subsequently authorized wiretaps, must be suppressed.

         Rush contends evidence revealed through disclosures from the United States and presented at the Franks hearing goes to the weight of the United States' case against him, which is one of the factors the Court must consider in evaluating whether to detain under the Bail Reform Act. While I certainly considered the strength of the government's case, (including evidence that there were Title III wire intercepts), in assessing whether or not to grant the United States' motion for pretrial detention, the strength of the government's case was not material to the order of detention. Rather, as reflected in the detention order, and set out above, Rush's personal history and characteristics such as lack of employment, extensive and serious criminal history, repeatedly poor performance while under court supervision, ongoing, chronic, and long-term history of substance abuse, and evidence that he was under supervision at the time of the instant arrest together with the rebuttable presumption for detention drove the decision to detain him pending trial. I also considered Rush's criminal history which reflected that he was on parole at the time of the instant charges and had a poor history of compliance while on supervision, including a history of absconding from supervision.

         In addition, as the United States pointed out in its response, it appears that even if Rush were to prevail on the Franks motion, it is not at all clear that the strength of the United States' case against Rush would be greatly diminished. Rush is implicated primarily as the driver in connection with the purchase of sham narcotics in DEA reverse sting operations that took place in February 2013. Rush has failed to explain how, if at all, suppression of wire-intercepted evidence obtained from Gatling's phone would take away from evidence derived from the reverse sting operations at the heart of the United States' case against him. In sum, even if the factual issues in the Franks motion are decided in Rush's favor, that result, standing alone, would not be a basis for reconsidering pretrial detention under the Bail Reform Act.

         Other than evidence presented at the Franks hearing, defense counsel offered little in the way of new evidence that was not previously considered by the Court. For the reasons already stated, the evidence related to the Franks hearing is not material to the analysis under the Bail Reform Act.

         Evidence proffered at the hearing that was both new and material to the pretrial detention inquiry included evidence that (i) Rush is currently sober due to his years of pretrial incarceration; (ii) after years of pretrial discovery there is nothing to suggest that Rush's role in the reverse sting operations was any more significant than that of driver; (iii) there is no evidence that Rush had any weapons or money on his person at the time of the sting operations; (iv) there is no evidence that Rush has, either on his own or at the direction of Gatling or anyone else, perpetrated any acts of violence against a witness, victim, or suspected informant in connection with this case; and (v) there is no evidence that Rush had any involvement in the murder of his alleged co-conspirator Morgan.

         The foregoing evidence, which was unknown at the time of the initial detention hearing, tends to favor Rush and, to some extent, makes the question of whether there is clear and convincing evidence that no conditions would reasonably assure the safety of the community a closer one. However, other than evidence of Rush's current state of sobriety, none of this new evidence addresses the primary concerns reflected in the initial detention order. As such, the new evidence presented by Rush is not sufficient to overcome the key factors on which the initial order of detention were predicated: namely, the presence of the rebuttable presumption together with Rush's extensive criminal history; Rush's equally extensive history of poor performance while under supervision; and Rush's apparent propensity for committing new crimes while still completing a sentence for another offense.

         In sum, for all of the foregoing reasons, the new evidence presented by Rush is either not material to the inquiry under the Bail Reform Act or, due to other evidence in the record as a whole, the new evidence is not a sufficient basis under the Bail Reform Act for ordering that Rush be released pending trial.

         II. Pretrial Release on Due Process Grounds

         Defendant Rush argues, in the alternative, that he should be released because his pretrial detention, which currently stands at 44 months, has become unconstitutionally excessive. The Due Process Clause of the Fifth Amendment provides that ‘‘No person shall . . . be deprived of life, liberty, or property, without due process of law[.]'' U.S. Const., Amend. V. An individual may be detained prior to trial without violating that clause so long as that confinement does not amount to ‘‘punishment of the detainee.'' Bell v. Wolfish, 441 U.S. 520, 535 (1979). This is because, although ‘‘[l]iberty is the norm, '' the ‘‘government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest.'' United States v. Salerno, 481 U.S. 739, 748 & 755 (1987).

         Neither the Supreme Court in Salerno nor any lower court confronted with this issue has set a bright-line limit that demarcates when continued pretrial detention violates due process. See Salerno 481 U.S. at 747 n.4 (noting “[w]e intimate no view as to the point at which detention in a particular case becomes excessively prolonged, and therefore punitive, in relation to Congress' regulatory goal.”). See also United States v. Taylor, 602 F. App'x. 713, 717 (10th Cir. 2015) (citation omitted) (noting that ‘‘pretrial detention for a lengthy period of time may implicate due process concerns'' but ‘‘ ‘the Constitution imposes no bright-line limit on the length of pretrial detention' ''); United States v. Briggs, 697 F.3d 98, 101 (2nd Cir. 2012)(‘‘We have consistently held that due process places no bright-line limit on the length of pretrial detention'').

         Instead, the issue of whether pretrial detention is unconstitutionally excessive is examined on a case-by-case basis. Courts have developed and applied the following nonexclusive factors when deciding whether continued pretrial detention would violate due process: (1) the non-speculative length of expected confinement; (2) the extent to which the government bears responsibility for delay; (3) the gravity of the charges; and (4) the strength of the evidence justifying detention including the existence of any rebuttable presumption for detention. See United States v. Watson, 475 Fed.Appx. 598, 601 (6th Cir. 2012); Briggs, 697 F.3d at 101; United States v. Hare, 873 F.2d 796, 801 (5th Cir. 1989); United States v. Kramer, No. CR 16-05-BLG-SPW-TJC-4, 2017 WL 1317535 *3 (D. Montana Mar. 20, 2017); United States v. Omar, 157 F.Supp.3d 707, 715 (M.D. Tenn. 2016).

         Although no one factor is dispositive, a review of the cases confronting due process challenges suggests that the longer the detention, the more weighty countervailing concerns must be. Where pretrial detention is very long, typically two years or more, continued detention is justified only where the government is not responsible for any significant portion of the delay and special circumstances indicate that the defendant's release would pose an extraordinary threat to the legitimate regulatory goals requiring pretrial detention. See Briggs, 697 F.3d at 101 (“The longer the detention, and the larger the prosecution's part in prolonging it, the stronger the evidence justifying detention must be if it is to be deemed sufficient to justify the detention's continuance”); Omar, 157 F.Supp.3d at 715 (where defendant was detained for more than four years pending trial on sex trafficking charges, “if not the rare case where the length of pretrial detention alone amounts to a due process violation;” the case came close and “at a minimum, the extended length of pretrial incarceration call[ed] for heightened scrutiny”); United States v. Aileman, 165 F.R.D. at 586-89 (canvassing the law and holding where non-speculative length of detention would be at least thirty-five months, the other two factors of the due process analysis- government responsibility for delay and threats to the government's regulatory interests-needed to weigh strongly in favor of the government to justify continued detention); United States v. Rodriguez, No. 09-CR-331A, 2012 WL 6690197 at *11 (W.D.N.Y. Dec. 12, 2012) (canvassing cases from the Second Circuit and holding that 50 month detention of defendant charged with gang-based racketeering related to drug trafficking activity and possession of a firearm in furtherance of drug crimes presented “rare case” where length of pretrial detention alone offended due process, where the case was still many months away from being ready for trial).

         A. Non-Speculative Length of Expected Confinement

         There is no dispute the duration of detention in this case falls squarely in the “very long” category. As of the writing of this order Rush has been in custody for 44 months. By the United States' estimation, March 2018 is the earliest this case will likely be ready to go to trial. As such, the earliest defendant can expect to go to trial is 4 years (48 months) after he was ordered detained pending trial. However, as defense counsel accurately pointed out during the hearing, a March 2018 trial date seems overly optimistic given the status of pretrial matters. Although the Franks issue is now submitted and ready for a ruling, the defendants reserved their right to file other pretrial motions related to physical evidence, statements, and other non-electronic surveillance evidence. Those deadlines have yet to be set and any pretrial motions related to non- electronic evidence have yet to be filed and resolved. In sum, the non-speculative length of expected confinement in this case is no less than and, in all likelihood, will exceed 48 months.

         Given that the length of detention in this case is approaching a duration that some courts have found, standing alone, offend due process, this factor weighs very heavily in favor of Rush.

         B. The Extent to Which the Government Bears Responsibility for Delay

         Where, as here, the length of pretrial detention exceeds two years, courts have typically upheld detention only if the government was not responsible for any significant portion of the delay and special circumstances indicated that the defendant's release would pose an extraordinary threat to the government's regulatory interests in detention. See Omar, 157 F.Supp.3d at 716 (quoting United States v. Cos, No. CR 05-1619 JB, 2006 WL 4061168, at *6-7 (D.N.M. Nov. 15, 2006)); Aileman, 165 F.R.D. at 589. In determining whether a lengthy period of pretrial detention has offended due process, the Court need not determine with precision the amount of pretrial delay attributable to the prosecution or assess the extent to which the Government may have been “at fault” in contributing to the delay. United States v. Gonzales Claudio, 806 F.2d 334, 342 (2d Cir. 1986). See also United States v. Hofstetter, No. 3:15-CR-27-TAV-CCS, 2017 WL 4079181 at *6 (E.D. Tenn. Sept. 14, 2017) (quoting Gonzales Claudio, 806 F.2d at 342). Rather, it is sufficient to determine whether “even if not deserving of blame or fault, the Government bears a responsibility for a [significant] portion of the delay.” Gonzales Claudio, 806 F.3d at 342-343. Thus, delay caused even by neutral reasons, such as strategic case management choices that foreseeably extend the case, may be attributable to the government. Rodriguez, 2012 WL 6690197, at *12-13; Hofstetter, 2017 WL 4079181, at *7.

         At the outset, it is important to point out that, from its inception, this case was designated a complex case that warranted an order permitting the case to proceed beyond the limits set out in the Speedy Trial Act. Over time, however, the case became more complex due to a combination of circumstances, some of which were beyond the control of any of the parties or their respective attorneys. More specifically, during the course of this already complex case, prosecutors learned that DEA agents from Atlanta, who provided information material to the investigation, were under investigation for professional misconduct. The prosecutors promptly notified the Court and defense counsel about the investigation. The internal DEA investigation eventually evolved into a criminal investigation that became the centerpiece of a challenge by all defendants in this case to the constitutionality of judicially-authorized wiretap evidence the prosecution intends to use at trial. In addition to this unanticipated development, this case evolved from a long-term drug trafficking conspiracy into one involving charges for continuing criminal enterprise for ...


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