                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        October 4, 2006
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court

    U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,

     v.                                                    No. 06-2244
                                                    (D.C. No. CR-05-1619 JB)
    JOSE A NTO NIO CO S,                                    (D . N.M .)

              Defendant-Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, BR ISC OE, and O’BRIEN, Circuit Judges.




          Jose Antonio Cos appeals the district court’s order of continued detention

pending appeal by the government of the court’s order granting defendant’s

motion to suppress. W e have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3145(c). W e affirm the district court’s decision to detain M r. Cos pending




*
      This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeal. W e remand on the limited question of w hether the length of M r. Cos’

pretrial detention implicates due process concerns.

                                           I

      The federal charges in this case arose out of an arrest warrant for M r. Cos

that the Albuquerque Police Department was executing at his residence. The

warrant was based on charges for domestic violence, kidnaping and aggravated

assault with intent to commit a violent felony on a household member. W hen the

officers arrived at M r. Cos’ apartment to execute the w arrant, one of M r. Cos’

former girlfriends, Feather Ricker, opened the door. She did not live in the

apartment or have a key to the apartment. She was at the apartment with her three

children to use the apartment pool. She told the officers that M r. Cos was not at

home and they asked if they could look for M r. Cos in the apartment. M s. Ricker

indicated that they could do so.

      During the course of their search for M r. Cos, the officers found a loaded

handgun under a bed. The officers learned that M r. Cos had prior felony

convictions and thus did not have the right to possess the firearm. The officers

arrested M r. Cos when he arrived at the apartment.

      A complaint was filed in the United States District Court for the District of

New M exico charging M r. Cos w ith being a felon in possession of a firearm in

violation of 18 U .S.C. § 922(g)(1). The government moved for M r. Cos’

detention pending trial on the grounds that he was a flight risk and a danger to the

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comm unity. The magistrate judge agreed with the government and ordered

M r. Cos detained pending trial. M r. Cos has been detained since June 29, 2005.

      Trial was originally scheduled for September 12, 2005. M r. Cos moved for

a continuance and it was granted. M r. Cos then filed a motion to suppress the

fruits of the officers’ entry into and search of his apartment, including the

handgun that is the subject of the indictment. A hearing was held on the motion

in November 2005. On April 25, 2006, the district court granted M r. Cos’ motion

to suppress the evidence. The next day, M r. Cos filed a motion for

reconsideration of his detention order. That motion was denied on M ay 5.

      The government filed a motion for reconsideration and a supplemental

motion for reconsideration of the district court’s suppression order. Those

motions were denied on M ay 17. The government then filed another motion for

reconsideration, which was denied on June 9. Finally, the government filed an

appeal of the district court’s decision on June 29. That appeal is currently

pending before this court.

      On July 25, 2006, M r. Cos filed a motion in the district court for release

pending appeal. The district court denied the motion and this appeal followed.

                                          II

      A motion seeking release pending an appeal by the government is

controlled by 18 U.S.C. § 3143, which provides that a court should treat a

defendant in this situation according to § 3142. See § 3143(c). U nder § 3142, a

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defendant may be detained only if the judicial officer finds that “no condition or

combination of conditions will reasonably assure the appearance of the person as

required and the safety of any other person and the community.” Id. § 3142(e).

In making this determination, the court must consider the following factors:

(1) the nature and circumstances of the offense charged, including whether the

offense is a crime of violence or involves a narcotic drug; (2) the weight of the

evidence against the person; (3) the history and characteristics of the person; and

(4) the nature and seriousness of the danger to any person or the community that

would be posed by the person’s release. Id. § 3142(g)

      W e review de novo mixed questions of law and fact concerning the

detention decision. United States v. Cisneros, 328 F.3d 610, 613 (10th Cir.

2003). W e review the district court’s findings of fact for clear error. Id.

      The District Court’s Decisions

      In its decision denying the request for release pending the government’s

appeal of the suppression order, the district court concluded that M r. Cos

“remains a danger to the community and a flight risk for substantially the same

reasons that the Court set forth in its M ay 5, 2006 M emorandum Opinion and

Order.” A plt. App. at 147. The court went on to note that:

      Cos’ two prior drug convictions, at least one of which involves
      trafficking, also continue to concern the Court, especially in light of
      Cos’ possession of a loaded firearm. The picture that the Court has
      of Cos, given the evidence in the record, is that he engages in drug



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       trafficking activities. Cos’ conduct reveals an individual who has
       refused to reform his criminal ways.

Id. at 148.

       In the M ay 2006 order addressing M r. Cos’ request to reconsider the

detention order after the district court’s suppression of the evidence, the district

court analyzed the § 3142 factors and made the follow ing findings:

       The nature and circumstances of the offense charged remain
       unchanged. W hile the weight of the evidence may have changed in
       light of the Court’s suppression of the firearm, that factor should not
       be given much w eight because the United States may appeal that
       ruling. The gun is still available as possible evidence; the issue is
       whether it is admissible. Further, Cos’ history and characteristics
       raise a significant risk of non-appearance because of the lack of
       information the Court has about his family, about what he is doing in
       the community, about his employment, and about his financial ties.
       R egarding his criminal history, he was a defendant in two
       consolidated cases in state court and demonstrated poor performance
       while on supervised release. According to Pretrial Services, he also
       has a number of aliases. W hile there was some dispute at the hearing
       whether Cos is in the country legally, he has an Immigration hold
       against him. Finally, on the nature and seriousness of the danger
       factor, his criminal history reflects prior offenses of a serious nature
       and a record of probation violations.

Id. at 84. The court concluded its analysis with the following determination:

“W ith these factors in mind, the Court sees no conditions or combination of

conditions that will reasonably assure Cos’ appearance or alleviate the risk that

his release will pose to the community.” Id. at 85.




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                                          III

      M r. Cos asserts that the district court erred in three ways in determining

that he should be detained pending appeal. His first argument is that the district

court failed to accord proper weight to the extended length of time that M r. Cos

has spent in detention and failed to consider the due process implications of his

prolonged pretrial detention. W e will consider this argument last. The second

argument is that the district court did not accord proper weight to its suppression

order. The third argument is that the district court did not conduct a proper

evaluation of the § 3142 factors in making its detention decision.

      The Suppression Order

      M r. Cos argues that the district court should have treated its suppression

order with more significance. Under § 3142(g)(2), the district court must

consider the weight of the evidence against the person as a factor in the detention

determination. As the district court explained in its M ay 2006 order, although the

suppression order may have impacted this factor, the factor itself should not be

given much w eight because of the government’s appeal and the fact that the gun

is still available as possible evidence. The only issue is whether or not the gun

will be admissible at trial. In a detention hearing, the district court is permitted to

consider the evidence sought to be suppressed as if it w ere admissible. See

18 U.S.C. § 3142(f) (“The rules concerning the admissibility of evidence in

criminal trials do not apply to the presentation and consideration of information at

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the [detention] hearing.”). Consequently, the district court did not err in its

consideration of this factor. It was appropriate to downplay the significance of

the suppression order by noting that the gun is still available as possible evidence.

      Evaluation of the § 3142(g) Factors

      M r. Cos argues that the district court erred in its evaluation of the

§ 3142(g) factors. W ith respect to the first factor, in its M ay 2006 order, the

district court noted that regardless of the suppression order, “[t]he nature and the

circumstances of the offense charged remain unchanged.” Aplt. A pp. at 84.

Although we agree with M r. Cos that the felon-in-possession charge is not a

crime of violence for purposes of the Bail Reform Act, see United States v. Ingle,

454 F.3d 1082, 1084-86 (10th Cir. 2006), it does involve a loaded firearm and the

circumstances leading to the offense involved the execution of a state arrest

warrant with allegations of a violent nature. As the district court noted, “[t]his

case arises out of an arrest warrant for Kidnaping, Aggravated Assault, and

Aggravated Assault with a Deadly W eapon. The allegations are that, in an

apparent jealous rage, Cos attempted to stab his ex-girlfriend and a male

individual, and the two victims took cover inside a parked vehicle.” Aplt. App. at

147-48. During the state’s attempt to execute the arrest warrant, the officers

discovered the loaded firearm under the bed in M r. Cos’ apartment. W e therefore

agree that the circumstances leading to the felon-in-possession charge weigh in

favor of detaining M r. Cos pending the government’s appeal.

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      W ith regard to the second factor, the weight of the evidence against the

person, we have already noted that for purposes of the detention hearing, “[t]he

rules concerning the admissibility of evidence in criminal trials do not apply to

the presentation and consideration of information at the [detention] hearing.”

18 U.S.C. § 3142(f). Because the discovery of the firearm is information that

may be considered at the detention hearing regardless of its admissibility as

evidence in the criminal trial, this factor also weighs in favor of detaining

M r. Cos pending appeal.

      The third factor involves consideration of the history and characteristics of

the person, including:

      (A ) the person’s character, physical and mental condition, family
      ties, employment, financial resources, length of residence in the
      community, community ties, past conduct, history relating to drug or
      alcohol abuse, criminal history, and record concerning appearance at
      court proceedings; and

      (B) whether, at the time of the current offense or arrest, the person
      was on probation, on parole, or on other release pending trial,
      sentencing, appeal, or completion of sentence for an offense under
      Federal, State, or local law.

Id. § 3142(g)(3). The district court concluded that M r. Cos’ history and

characteristics raise a significant risk of non-appearance. W e agree. As the

district court noted, there is very little information about M r. Cos’ family, about

what he is doing in the community, about his employment, and about his finances.




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M oreover, he has a prior state court conviction for drug trafficking and he

violated the terms of his parole for that violation on several occasions.

      Finally, on the nature and seriousness of the danger factor, the district court

reiterated that M r. Cos’ criminal history reflects prior offenses of a serious nature

and a record of probation violations. The court stated:

      Cos’ two prior drug convictions, at least one of which involves
      trafficking, also continue to concern the Court, especially in light of
      Cos’ possession of a loaded firearm. The picture that the Court has
      of Cos, given the evidence in the record, is that he engages in drug
      trafficking activities. Cos’ conduct reveals an individual who has
      refused to reform his criminal ways.

Aplt. App. at 148. In addition to M r. Cos’ criminal history, the record reflects

that a scale–of the kind typically associated with drug trafficking–and $500 in

cash were found during the search of M r. Cos’ apartment after his arrest. Id. at

156-58. W e again agree with the district court that this factor weighs in favor of

detaining M r. Cos pending appeal. The district court did not err in its evaluation

of the § 3142(g) factors and its decision to detain M r. Cos pending appeal.

      Length of Pretrial Detention

      At the time of the hearing on the motion for release pending appeal,

M r. Cos had been detained for almost 14 months, since June 29, 2005. In his

motion, M r. Cos asserted that, in light of the length of his pretrial detention,

greater justification for his continued detention was required under the Due

Process Clause. M r. Cos contended that his sentence may be as short as



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27 months and he has now already served half of that time. M oreover, he argued

that “‘w hen the admissibility of all evidence against defendants is questionable, [

. . . ] prolonged pretrial detention must be subjected to more careful scrutiny than

might otherwise be required.’” Aplt. App. at 92 (quoting United States v.

Shareef, 907 F. Supp. 1481, 1485 (D. Kan. 1995)). The district court did not

address this due process argument in its order denying the motion for release

pending appeal. M r. Cos argues that this was error.

      A district court is not required to consider the length of pretrial detention

when making its initial detention decision. Cf. 18 U.S.C. § 3142; United States v.

Accetturo, 783 F.2d 382, 388 (3d Cir. 1986) (declining to hold Bail Reform Act

unconstitutional for omitting the duration of pretrial incarceration from the

factors to be considered by the judicial officer in the detention determination).

The court in Accetturo went on to explain however, that:

      W e agree with the Second Circuit that at some point due process may
      require a release from pretrial detention or, at a minimum, a fresh
      proceeding at which more is required of the government than is
      mandated by section 3142. Thus, a determination under the Bail
      Reform Act that detention is necessary is without prejudice to a
      defendant petitioning for release at a subsequent time on due process
      grounds.

Id.; see also Shareef, 907 F. Supp. at 1483-84 (reopening detention hearing to

examine the due process implications of the continued detention of defendants).

Because M r. Cos’ motion for release pending appeal was akin to a motion to

reopen his detention hearing, it was appropriate for M r. Cos to assert his due

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process argument. The district court should have ruled on that issue. On remand,

the district court should consider: 1) the length of detention; 2) the extent of the

prosecution’s responsibility for the delay of trial; and 3) the strength of the

evidence upon which the detention was based. See United States v. M illan, 4 F.3d

1038, 1043-1047 (2d Cir. 1993).

                                          IV

      Because the record supports the district court’s findings and there was no

legal error, we AFFIRM the decision of the district court denying release pending

appeal. W e REM AND for the district court to consider the due process

implications of the length of M r. Cos’ pretrial detention. The underlying appeal,

No. 06-2187, United States v. Cos, will be expedited. The case will be placed on

the next available docket and no extensions will be granted on the briefing

schedule.



                                        ENTERED FOR THE COURT
                                        PER CURIAM




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