11-4790-cr
United States v. Hill
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21st day of February, two thousand twelve.

PRESENT: RALPH K. WINTER,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                               No. 11-4790-cr

RODNEY HILL, a.k.a. Rock,
                       Defendant-Appellant,

TYRONE PENNICK, a.k.a. Stuff, DAVID MANUEL, a.k.a.
Day Day, WARDELL EPPS, a.k.a. Whoa Whoa, SHARON
JACKSON, MYKALE KING, a.k.a. Mookie, PAULINE
MANUEL, ANTHONY NEWMAN, EVELINA STOKES,
SWAZINE SWINDLE, a.k.a. Swazzie, a.k.a. Swizzie,
RAUL L. GARNICA, RENE I. GARNICA, a.k.a. Judy
Thomas, YOLANDA HODGE, a.k.a. La La, JERMAINE
HOWARD, a.k.a. Jay, ARTHUR HUBBARD, a.k.a. Art,
a.k.a. Fatboy, JESSE HUGHES, LOUIS MANUEL, JR.,
a.k.a. Stank, JOSEPH MARBLE, TONYA MAYE,
BRYANT WOODS, JUDITH ASKEW, a.k.a. Judy Thomas,
                                 Defendants.*
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APPEARING FOR APPELLANT:                          GERALD T. WALSH, Zdarsky, Sawicki &
                                                  Agostinelli LLP, Buffalo, New York.

APPEARING FOR APPELLEE:                     JAMES P. KENNEDY, JR. (Joseph J.
                                            Karaszewski, on the brief), Assistant United
                                            States Attorneys, for William J. Hochul, Jr.,
                                            United States Attorney for the Western District of
                                            New York, Buffalo, New York.

       Appeal from an order of the United States District Court for the Western District of

New York (Richard J. Arcara, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order issued on November 7, 2011, is AFFIRMED.

       Rodney Hill, who stands indicted for substantive and conspiratorial drug crimes, see

21 U.S.C. §§ 841(a)(1), (b)(1)(A), 843(b), 846, 848(a), as well as firearms offenses, see 18

U.S.C. §§ 922(g)(1), 924(a)(2), (c)(1), appeals from an order denying him bail pending trial,

despite the fact that he has been detained since his arrest on December 16, 2009, without a

trial date. Hill challenges his continued pretrial detention as violative of substantive and




       *
           The Clerk of Court is directed to amend the official caption as shown above.

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procedural due process.1 We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Substantive Due Process

       Pretrial detention constitutes punishment in violation of the Fifth Amendment’s Due

Process Clause when it is excessive in relation to non-punitive purposes of detention, such

as “preventing danger to the community,” United States v. Salerno, 481 U.S. 739, 746-47

(1987), or “ensur[ing] [a defendant’s] presence at trial,” Bell v. Wolfish, 441 U.S. 520, 536

(1979). “To determine whether the length of pretrial detention has become unconstitutionally

excessive, a court must weigh: (1) its length, (2) the extent of the prosecution’s responsibility

for delay of the trial, (3) the gravity of the charges, and (4) the strength of the evidence upon

which detention was based, i.e., the evidence of risk of flight and dangerousness.” United

States v. El-Hage, 213 F.3d 74, 79-80 (2d Cir. 2000). In determining whether Hill’s pretrial

detention violated his due process rights, “we review the district court’s findings of historical

fact . . . for clear error, but we review its ultimate resolution of the constitutional due process

issue de novo.” United States v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993).


       1
        Though Hill purports to challenge his detention under the Speedy Trial Clause of the
Sixth Amendment, we have jurisdiction only to determine the propriety of pretrial detention,
see United States v. Abuhamra, 389 F.3d 309, 317 (2d Cir. 2004) (holding that order of
detention qualifies as appealable final order), not of delay in prosecution, see Barker v.
Wingo, 407 U.S. 514, 522 (1972) (holding that dismissal of indictment “is the only possible
remedy” for violation of constitutional speedy trial right), a matter reviewable only on appeal
from a judgment of conviction, see United States v. Culbertson, 598 F.3d 40, 48 (2d Cir.
2010) (holding that neither constitutional nor statutory speedy trial claims are subject to
interlocutory appeal).

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       On appeal, Hill does not challenge the district court’s findings that he faces serious

drug-trafficking charges that carry statutory minimum terms of life imprisonment, or that

these charges carry a presumption of risk of flight and danger to the community that Hill

failed to overcome and that was, in fact, reinforced by his past criminal history.2 See 18

U.S.C. § 3142(e)(3); United States v. English, 629 F.3d 311, 319 (2d Cir. 2011). Rather, Hill

focuses his due process argument on the length of his detention.

       Due process sets no bright-line limit on the length of pretrial confinement. See

United States v. Orena, 986 F.2d 628, 630 (2d Cir. 1993); see also United States v.

Melendez-Carrion, 820 F.2d 56, 59 (2d Cir. 1987) (refusing to hold that pretrial detention of

nineteen months constituted per se due process violation). Thus, the “[l]ength of detention

will rarely by itself offend due process.” United States v. Millan, 4 F.3d at 1044 (internal

quotation marks omitted). Rather, we review the totality of the circumstances, upholding

pretrial detentions of two to three years in some cases, see, e.g., United States v. El-Hage,

213 F.3d at 79-81 (upholding anticipated thirty to thirty-three month detention before

verdict); United States v. El-Gabrowny, 35 F.3d 63, 65 (2d Cir. 1994) (upholding anticipated

twenty-seven month detention before verdict); United States v. Millan, 4 F.3d at 1044

(reversing order of release and ordering defendants detained pending trial despite anticipated


       2
        Hill’s belated attempt to challenge these findings in his reply brief is unavailing
because arguments raised for the first time in a reply brief are deemed waived. See
Connecticut Bar Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010). The same
conclusion pertains to his belated contention at oral argument that the government bears
some responsibility for the delay. In any event, we identify no clear error in these findings.

                                              4
thirty to thirty-one month detention before verdict), and finding them to violate due process

when insufficiently justified by other factors, see, e.g., United States v. Ojeda Rios, 846 F.2d

167, 168-69 (2d Cir. 1988) (holding unconstitutional pretrial detention for thirty-two months

without trial date); United States v. Gonzales Claudio, 806 F.2d 334, 341 (2d Cir. 1986)

(holding unconstitutional detention anticipated to last twenty-six months before verdict).

       On the facts of this case, we conclude that Hill’s continued detention pending trial

does not violate due process. Although the length of his detention certainly requires

convincing justification for its continuance, that justification is found in the inherent

complexities of this large multi-defendant case, which presents defense counsel with

voluminous discovery to absorb and the court with myriad motions to address. Moreover,

the record reflects no intentional, unwarranted delay by the prosecution, and most of the

delay is attributable to the continuances requested by his twenty co-defendants and the

complexities inherent in a twenty-defendant case. Further, the seriousness of the allegations

against Hill, and the strength of the evidence indicating risk of flight and danger to the

community, weigh strongly in favor of continued detention through trial.

       For such continued pretrial detention not to offend due process, however, trial must

be afforded Hill within a reasonable time. It appears that the district court has neither ruled

on Hill’s November 30, 2010 motion to sever his charges from those of his co-defendants,

nor set a trial date. Therefore, in affirming Hill’s detention order, we do so without prejudice

to Hill moving this court to recall the mandate and reinstate his appeal if the district court


                                               5
does not begin Hill’s trial or release him on bail on or before July 1, 2012, see United States

v. Salameh, 84 F.3d 47, 50 (2d Cir. 1996) (holding that “a court of appeals always has

authority to restore appellate jurisdiction over a case that has been remanded to a district

court” through grant of motion to recall mandate); United States v. Jacobson, 15 F.3d 19, 21-

22 (2d Cir. 1994) (holding that 28 U.S.C. § 2106 authorizes issuance of mandate specifying

conditions for restoration of appellate jurisdiction), the point at which his pretrial detention

would have exceeded the thirty-month period we identified as “extraordinary” in United

States v. El-Hage, 213 F.3d at 76.

2.     Procedural Due Process

       Hill further argues that the district court’s failure to “determine[] promptly” his appeal

from the magistrate judge’s detention order, 18 U.S.C. § 3145(b), requires his release on bail.

The district court has candidly acknowledged that Hill’s appeal of the magistrate judge’s

detention order languished on the docket for over nineteen months due to an administrative

oversight. Nevertheless, the Bail Reform Act’s prompt hearing requirement does not

“require, or even suggest, that a timing error must result in release of a person who should

otherwise be detained.” United States v. Montalvo-Murillo, 495 U.S. 711, 716-17 (1990).

Because Hill does not challenge the district court’s determination that no conditions of

release would be sufficient to assure his appearance at trial and the safety of the community,

this part of his due process argument is without merit.




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3.     Conclusion

       Accordingly, the detention order is AFFIRMED without prejudice to Hill moving this

court to recall the mandate and reinstate his appeal if the district court does not begin Hill’s

trial or release him on bail on or before July 1, 2012. The Clerk of Court shall refer any such

motion to this panel. The mandate shall issue forthwith.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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