     Case: 10-20466     Document: 00511220435          Page: 1    Date Filed: 08/31/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 31, 2010

                                     No. 10-20466                           Lyle W. Cayce
                                   Summary Calendar                              Clerk




UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

ROBERT ALLEN STANFORD, also known as Sir Allen Stanford, also known
as Allen Stanford

                                                   Defendant - Appellant

               and

MICHAEL MARTIN ESSMYER, Sr., Esq.,

                                                   Appellant




                   Appeals from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:09-CR-00342-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                       No. 10-20466

       In this, his third appeal to this court protesting the district court’s decision
requiring pretrial detention, defendant Robert Allen Stanford (“Stanford”)
argues that continued pretrial detention violates his rights to due process under
the Fifth Amendment and to effective assistance of counsel under the Sixth
Amendment. We disagree and therefore affirm the district court’s denial of
Stanford’s motion for pretrial release.
       The background facts and procedural history of Stanford’s case are
thoroughly explained in our prior decisions; we have no need to repeat those
facts here. See United States v. Stanford (Stanford II), 367 F. App’x 507 (5th Cir.
Feb. 17, 2010); United States v. Stanford (Stanford I), 341 F. App’x 979 (5th Cir.
Aug. 24, 2009). On May 19, 2010, Stanford moved the district court to be
released from custody, arguing that his continued detention violated various
constitutional protections.         The district court denied that motion in an
memorandum order entered July 7, 2010. As to Stanford’s Fifth Amendment
argument, the district court applied the factors articulated in United States v.
Hare, 873 F.2d 796 (5th Cir. 1989), and concluded that Stanford’s continued
detention served regulatory purposes and thus comported with the Fifth
Amendment’s prohibition on punitive pretrial detention. The district court
further concluded that Stanford’s continued detention does not so interfere with
his ability to participate in trial preparation that it results in a deprivation of his
Sixth Amendment rights.1
       “We review questions of constitutional law de novo.” United States v.
Guidry, 456 F.3d 493, 506 (5th Cir. 2006) (citing United States v. Romero-Cruz,
201 F.3d 374, 377 (5th Cir. 2000)); see also De Zavala v. Ashcroft, 385 F.3d 879,


       1
         The district court also rejected Stanford’s argument that continued detention violates
the Eight Amendment’s prohibition on excessive bail, reasoning that the Eighth Amendment
does not require bail in all cases -- and that this was, as it had previous found, a case
warranting the denial of pretrial release. Stanford does not challenge this aspect of the
district court’s order.

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883 (5th Cir. 2004) (“We review due process challenges de novo.”). In reviewing
the district court’s resolution of the legal questions de novo, we defer to the
district court’s findings of historical fact unless they are clearly erroneous. See
Allstate Ins. Co. v. Abbott, 495 F.3d 151, 160 (5th Cir. 2007) (“To the extent
relevant to the constitutional question, subsidiary facts are reviewed for clear
error.”); see also United Stats v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993) (“[W]e
review the district court’s findings of historical fact in this case for clear error,
but review its ultimate resolution of the constitutional due process [pretrial
detention] issue de novo.”).
       The Due Process Clause of the Fifth Amendment forbids pretrial
detention that is punitive, rather than regulatory, in nature. See United States
v. Salerno, 481 U.S. 739, 747-48 (1987). The Supreme Court has generally
upheld the constitutionality of the Bail Reform Act, under which the district
court here has ordered Stanford’s pretrial detention, as serving regulatory and
not punitive ends. See id. In doing so, however, the Court intimated that
pretrial detentions may “become excessively prolonged . . . in relation to
Congress’s regulatory goal” as to be punitive in nature. See id. at 747 n.4. To
determine whether pretrial detention becomes excessively prolonged and
violates due process “requires assessment on a case-by-case basis, for the clause
establishes no specific limit on the length of pretrial confinement.” Hare, 873
F.2d at 801. We explained in Hare:
      In determining whether due process has been violated, a court must
      consider not only factors relevant in the initial detention decision,
      such as the seriousness of the charges, the strength of the
      government’s proof that the defendant poses a risk of flight or a
      danger to the community, and the strength of the government’s case
      on the merits, but also additional factors such as the length of the
      detention that has in fact occurred or may occur in the future, the
      non-speculative nature of future detention, the complexity of the
      case, and whether the strategy of one side or the other occasions the
      delay.

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Id.
         Stanford has presented no new evidence that called for the district court
to reevaluate its conclusions on the factors relevant in the initial detention
decision. Those factors, as we have previously concluded, quite compellingly call
for Stanford’s pretrial detention.


         Stanford has the means, the motive, and the money to flee. He faces
         a potential sentence of 375 years in prison, has access to an
         international network of contacts, has previously concealed his
         travels, has demonstrated an ability to access funds from
         acquaintances even if his own assets are frozen, has established his
         primary residence in Antigua and Barbuda for the past fifteen
         years, and has little family ties in Houston, Texas, having only
         recently established some of those connections for purposes of his
         impending trial.

Stanford I, 341 F. App’x at 983-84. Stanford has also not demonstrated a change
in circumstances warranting reconsideration of those findings in the past,
instead refashioning previously known information as new facts. See Stanford
II, 367 F. App’x at 510-11. We agree with the district court that the factors that
so firmly supported the initial denial of pretrial bail also firmly support
Stanford’s continued detention.
         The district court undertook a thorough and accurate analysis of the
additional factors we articulated in Hare. To date, Stanford’s detention has
lasted just over twelve months and his trial will begin in January 2011. Even
assuming that his trial will last six months, as Stanford speculates, he has
pointed to no court decision declaring that the length of such a detention violates
the Fifth Amendment; indeed, courts have routinely upheld longer pre-
detentions in the face of constitutional attacks. See, e.g., United States v. El-
Hage, 213 F.3d 74, 77-79 (2d Cir. 2000) (considering a thirty- to thirty-three-
month pretrial detention); United States v. Milan, 4 F.3d 1038, 1044 (2d Cir.


                                          4
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1993) (considering a thirty-month pretrial detention). Moreover, the length of
Stanford’s pretrial detention is not speculative, nor is it indefinite. The district
court is committed to beginning his trial in January 2011 and, in any event,
Stanford’s detention is necessarily limited by the mandates of the Speedy Trial
Act. See Salerno, 481 U.S. at 747 (explaining that the “maximum length of
pretrial detention is limited by the stringent time limitations of the Speedy Trial
Act”). As to the third additional factor, Stanford concedes that “there is no
question that this case is one of extraordinary complexity, involving both an
enormous volume of discovery documents and a staggering number of
transactions.” Finally, our review of the record in this case supports the district
court’s determination that much of the delay in Stanford’s trial is attributable
to his own tactical and strategic choices, including countless changes to his
choice of trial counsel. It does not appear that any delay in beginning the trial
of this matter (and we do not mean to imply that a trial beginning eighteen
months from indictment in a case as complex as this must be the product of
“delay”) is attributable to the Government.
       Accordingly, each of the Hare factors leads to the conclusion that
Stanford’s continued pretrial detention serves only regulatory goals and has not
crossed the due process boundary of impermissible punishment.
       Stanford argues the district court “mistook the nature of [his] Sixth
Amendment argument” by “treating it as a free-standing due process argument
rather than as a factor that should be weighed” as part of Hare’s Fifth
Amendment analysis. Our review of the record reveals that Stanford in fact
presented a free-standing Sixth Amendment claim to the district court2 ; because


       2
        See Defendant’s Opposed Motion for Release from Detention (District Court Docket
No. 225, filed May 19, 2010), at 2 (“Mr. Stanford’s continued detention will also . . . deprive
him of his Sixth Amendment right to effective assistance of counsel.”); id. at 8 (“A critical
element of [the pretrial detention] punishment -- and also an independent reason why Mr.
Stanford must be released from detention -- lies in the ongoing deprivation of his fundamental

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Stanford does not object to the district court’s treatment of his independent Sixth
Amendment claim, we now deem it waived. See Miller v. Texas Tech Univ.
Health Science Ctr., 421 F.3d 342, 348-49 & n.17 (5th Cir. 2005) (en banc).
       To the extent that Hare may allow consideration of how pretrial detention
affects the defendant’s ability to participate in his own defense, Stanford has not
shown that this factor would call for his release, particularly in light of the other
factors supporting his continued detention. And, as the district court found, both
in addressing this motion and in connection with Stanford’s various other
challenges to his pretrial detention,3 the reasonable restrictions imposed by the
circumstances of his custody do not “impede his ability to prepare for trial or
personally assist his counsel in such preparation.”              There was more than
adequate evidence to support the district court’s findings. Moreover, Stanford
has not shown an absence of evidence supporting the district court’s findings of
historical fact, nor has he pointed to evidence calling for the contrary conclusion.
See Guerra v. Johnson, 90 F.3d 1075, 1078 (5th Cir. 1996) (“[A] factual finding
is clearly erroneous ‘when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’” (quoting Anderson v. City of Bessemer City, 470
U.S. 564, 573 (1983)). We therefore find Stanford’s argument that his pretrial
detention is impermissibly punitive because of the reasonable limitations placed
on his ability to participate in his defense to be unpersuasive.
       For the foregoing reasons, we affirm the district court’s July 7, 2010 order
denying Stanford’s motion for release from pretrial detention.



Sixth Amendment right to assist in the preparation of his defenses and to have the effective
assistance of counsel in his defense.” (emphasis added)).
       3
        See Stanford II, 367 F. App’x at 511 n.4 (“The district court considered, on several
occasions, Stanford’s argument that custody made it difficult for him to prepare an effective
defense.”).

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                            No. 10-20466

   AFFIRMED.




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