### 1 12-2988-cr United States v. Briggs

1

2 

### UNITED STATES COURT OF APPEALS 3 

### FOR THE SECOND CIRCUIT 4

5 

### August Term, 2012 6

7 

### (Argued: September 4, 2012 Decided: October 5, 2012) 8 

### (Amended: October 9, 2012) 9

10 

### Docket No. 12-2988-cr 11

12

13 

### UNITED STATES OF AMERICA, Appellee 14

15



### – v. – 16

17 

### ANTONIO BRIGGS, Defendant-Appellant 18

19

20 

### Before: CALABRESI and CARNEY, Circuit Judges

.  21

22 

### Antonio Briggs, who stands indicted for substantive and conspiratorial drug 23 

### crimes, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), 841(b)(1)(C), 841(b)(1)(D), 24 

### 841(b)(1)(E), and 846, and who, having been arraigned on August 17, 2010, has been 25 

### detained with no trial date set, appeals from an order denying him bail pending trial. 26 

### Briggs challenges his ongoing pretrial dete ntion as a violation of due process. We 27 

### conclude that the district court (Skretny, J .) properly applied our test for due process 28 

### review of pretrial detention and that its findings of fact were not clearly erroneous. We 29 

### therefore AFFIRM the detention order without pr ejudice to Briggs’s moving this court to 30 

### recall the mandate and reinstate his appeal if the district court does not begin Briggs’s 31 

### trial, or set reasonable bail for him, on or before February 1, 2013. 32



### JOEL L. DANIELS, Buffalo, N.Y., for Defendant33 

### Appellant

. 34

35 

### MONICA J. RICHARDS, Assistant United States 36 

### Attorney, for William J. Hochul Jr., United States 37 

### Attorney for the Western District of New York, 38 

### Buffalo, N.Y., for Appellee

. 39

40

 For health reasons, the third judge originally assigned to the panel was unable to hear the case. In accordance with our local rules, the two remain ing members of the panel have decided the case. See 28 U.S.C. §46(d); 2d Cir. IOP E(b); United States v. Desimone , 140 F.3d 457, 458-59 (2d Cir. 1998).

### 2 CALABRESI, Circuit Judge : 1



### Antonio Briggs stands indicted for his a lleged principal role in a multi-count, 2



### multi-defendant drug distribution conspiracy. A Third Superseding Indictment charges 3



### Briggs with conspiring to possess with intent to distribute, and to distribute, 5 kilograms 4



### or more of cocaine, 28 grams or more of cocaine base, heroin, MDMA, oxycodone, 5



### hydrocodone, and marijuana in violation of 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B), 6



### 841(b)(1)(C), 841(b)(1)(D), 841(b)(1)(E), and 846. Briggs was arraigned on August 17, 7



### 2010 and has been detained, with no date set for trial, ever since. 8



### On September 1, 2010, Magistrate Judg e Hugh B. Scott ordered Briggs held 9



### without bail pending trial. On December 23, 2010, the magistrate judge denied Briggs’s 10



### motion for reconsideration. The district court (Skretny, J. ) reviewed this denial and, in 11



### an order dated March 4, 2011, affirmed it. Ea rlier this year, Briggs again challenged the 12



### magistrate judge’s order in district court—t his time on the ground that his ongoing 13



### detention violates due process. On July 13 , 2012, the district court rejected this 14



### challenge. Briggs now appeals here. 15



### Before us, Briggs challenges the lower court s’ finding that he represents a risk of 16



### flight and a danger to the community. He also complains that his detention has been 17



### too long—longer, he contends, than due proc ess can tolerate. We disagree, and affirm 18



### the order of the district court. But we also fi nd that unless Briggs’s trial begins within a 19



### reasonable time, his ongoing detention ma y well violate due process. We therefore 20



### affirm the detention order without prejudice to Briggs’s moving this court to recall the 21



### mandate and reinstate his appeal if the distri ct court does not begin his trial, or set 22



### reasonable bail for him, on or before February 1, 2013. 23

### 3 BACKGROUND 1



### Antonio Briggs, a life-long resident of We stern New York, is thirty-nine years old. 2



### He and his wife of fifteen years are the parent s of two children, ages eighteen and eight. 3



### Briggs has two prior felony convictions—one, in 1992, for possessing half an ounce of 4



### cocaine, and another, in 1995, for possessing and selling several grams of cocaine. 5



### Briggs has never been charged with a violen t offense, and there is no suggestion of 6



### violent behavior or weapon use in connect ion with the charges now pending. Since 7



### 2007, Briggs has been the owne r and operator of a large urban clothing store in Buffalo, 8



### New York. 9



### Briggs invokes his family and business ti es to Western New York to rebut lower10



### court findings that he represents a risk of flight, and he adduces his non-violent record 11



### to rebut findings that he poses a danger to the community. He asks that we condemn 12



### his nearly twenty-six month detention as a violation of due process, and that we order 13



### the district court to set reasonable bail for him. In the alternative, he asks that we order 14



### for him the earliest possible trial date. 15

16



### DISCUSSION 17



### Pretrial detention satisfies due process only if its purpose is regulatory rather 18



### than punitive. United States v. Salerno , 481 U.S. 739, 746–47 (1987); Bell v. Wolfish

, 19



### 441 U.S. 520, 536-537 (1979). Permissibl e regulatory purposes include “preventing 20



### danger to the community,” Salerno , 481 U.S

. at 747, and “ensur[ing] [a defendant’s] 21



### presence at trial,” Bell , 441 U.S. at 536. In a due process challenge to pretrial detention, 22



### “we review the district court’s findings of hi storical fact . . . for clear error” and “its 23

### 4 ultimate resolution of the constitutional due process issue de novo .” United States v. 1



### Millan , 4 F.3d 1038, 1043 (2d Cir. 1993). 2



### Briggs contends that his long detent ion offends due process. We have 3



### consistently held that due process places no br ight-line limit on the length of pretrial 4



### detention. See United States v. Orena , 986 F.2d 628, 630 (2d Cir. 1993); United States 5



### v. Melendez-Carrion , 820 F.2d 56, 59 (2d Cir. 1987). While length of detention is 6



### “obviously a central focus of our inquiry,” United States v. Gonzales Claudio , 806 F.2d 7



### 334, 340 (2d Cir. 1986), “the due process limit on the duration of preventive detention 8



### requires assessment on a case-by-case basis,” id . (internal quotation marks omitted). 9



### In making such an assessment, we consider the strength of the evidence justifying 10



### detention, the government’s responsibility fo r the delay in proceeding to trial, and the 11



### length of the detention itself. See United States v. El-Hage , 213 F.3d 74, 79 (2d Cir. 12



### 2000); United States v. El-Gabrowny , 35 F.3d 63, 65 (2d Cir. 1994); Millan , 4 F.3d at 13



### 1043. 1 

### The longer the detention, and the larger the prosecution’s part in prolonging it, 14



### the stronger the evidence justifying detention mu st be if it is to be deemed sufficient to 15



### justify the detention’s continuance. 16

17



### (1) Strength of the Evidence Justifying Detention 18



### By statute, courts order the pretrial dete ntion of a defendant when necessary to 19



### “assure the appearance of the person as requ ired and the safety of any other person and 20



### the community.” 18 U.S.C. § 3142(c)(1)(b). In determining whether a defendant poses a 21

1 We have sometimes described the standard as a four-p art test that looks at the length of detention, the prosecution’s responsibility for delay, the gravity of the charges, and the strength of the evidence justifying detention. See El-Hage , 213 F.3d at 79; El-Gabrowny , 35 F.3d at 65. Because Congress has required courts to consider “the nature and circumstan ces of the offense charged” as part of their inquiry into the strength of the evidence justifying detention, see 18 U.S.C. § 3142(g)(1), we feel that no substance is lost, and some clarity is gained, by stating the standard in three parts.

### 5 risk of flight or represents a danger to the community, courts must consider “(1) the 1



### nature and circumstances of the offense charge d . . . ; (2) the weight of the evidence 2



### against the person; (3) the history and characte ristics of the person . . . ; [and] (4) the 3



### nature and seriousness of the danger to any person or the community that would be 4



### posed by the person’s release.” 18 U.S.C. § 3142(g)(1)-(4). 5



### In its order of March 4, 2011, the district court properly exam ined each of these 6



### factors and decided that they all weighed ag ainst Briggs. The district judge observed 7



### that the charges against Briggs not only involved “a controlled substance,” see 18 U.S.C. 8



### § 3142(g)(1), but that Briggs was charged withhaving “held a principal role” in “a large9



### scale drug-trafficking conspiracy involving various controlled substances.” Order of 10



### March 4, 2011, at 4. Congress has created a statutory presumption of flight risk and 11



### dangerousness for a defendant who, like Bri ggs, is charged with “an offense for which a 12



### maximum term of imprisonment of ten years or more is prescribed in the Controlled 13



### Substances Act,” 18 U.S.C. § 3142(e)(3). 2 

### The district court adjudged that “the nature of 14



### Defendant’s alleged offenses and his potent ial for a lengthy period of incarceration 15



### provide a motive to flee and weigh against release.” Order of March 4, 2011, at 4

. 16



### The district judge found, moreover, that the evidence against Briggs “appears to 17



### be strong,” consisting, among other thin gs, “of intercepted communications between 18



### [Briggs] and other co-defendants, regarding the alleged purchase and distribution of 19



### narcotics.” Id . Although Briggs invoked his nonvio lent history and family and business 20



### ties to western New York to rebut the presumption of flight risk and dangerousness, the 21



### district court found that Briggs’s personal characteristics and history cut both ways. Id

. 22



### at 5. Thus, the district judge highlighte d Briggs’s criminal history of narcotic 23

2 If convicted, Briggs faces a minimum prison term of ten years.

### 6 convictions, as well as information that the government had received “from a 1



### previously-credible confidential source” indicati ng that Briggs “had stated an intention 2



### to flee or take his own life upon pretrial release.” Id . at 5-6. Finally, the district judge 3



### underscored government allegations that memb ers of Briggs’s family were seeking to 4



### identify informants and had hinted at reprisals. Id . at 6-7. 5



### Reviewing Briggs’s detention order sixteen months later, the district judge held 6



### that these “circumstances [had ] not changed.” Order of July 13, 2012, at 3. We see no 7



### reason to think that these factual findings of th e district court were in error. We, like the 8



### district judge, conclude that the evidence justifying Briggs’s detention is strong. 9

10



### (2) Responsibility for the Delay 11



### Earlier this year, we upheld by summa ry order the 24-month detention of a 12



### defendant who, like Briggs, was charged with participation in a large drug conspiracy. 13



### We noted that the defendant’s long detentio n was justified in part by “the inherent 14



### complexities of this large multi-defendant case, which presents defense counsel with 15



### voluminous discovery to absorb and the court with myriad motions to address.” United 16



### States v. Hill , 462 F. App’x 125, 127 (2012) (summary order). On the record of that case 17



### we discovered “no intentional, unwarranted delay by the prosecution,” and determined 18



### that “most of the delay [was] attributabl e to the continuances requested by [the 19



### defendant’s] twenty co-defendants and the com plexities inherent in a twenty-defendant 20



### case.” Id. 21



### A review of the record in the instant case yields a similar conclusion. This case, 22



### too, has been slowed by repeated motions an d abundant discovery. As the government 23



### points out in opposition to Briggs’s appeal, Briggs himself has joined most of the 24

### 7 motions that his co-defendants have filed. See Appellee’s Mem. in Resp., at 6. It 1



### appears, therefore, that he bears some of the blame for his trial’s delay. Accordingly, 2



### this fact also weighs against finding a due process violation. 3



### We caution, however, that the difficulties faced by the prosecution in a large and 4



### complex case do not justify the indefinite de tention of the defendan ts. The realities of 5



### limited resources and the interests of effici ency may lead us to uphold exercises of 6



### prosecutorial discretion, but they do not s uffice to excuse failures of prosecutorial 7



### diligence. When the government decides to prosecute a case of considerable complexity 8



### and scope, it must still pursue that case with promptness and energy. Due process does 9



### not slumber because cases are complex. 10

11



### (3) Length of Detention 12



### We have often affirmed that the Consti tution imposes no bright-line limit on the 13



### length of pretrial detention. See Millan , 4 F.3d at 1044; Orena , 986 F.2d at 630. But we 14



### have also stressed that very long de tentions must be exceptional. 15



### Twelve years ago, for instance, we uphe ld against constitutional challenge the 16



### pretrial detention, projected to last betw een 30 and 33 months, of a defendant charged 17



### “with being a key participant in the terrorist organization founded by [Osama] Bin 18



### Laden, called ‘al Qaeda.’” El-Hage , 213 F.3d at 77. We emphasized, however, that the 19



### length of detention in that case was “e xtraordinary, and justified only by the 20



### unprecedented scope of violence that the con spiracy of which defe ndant was allegedly a 21



### part inflicted on innocent victims, by the extraordinarily complex and difficult 22



### preparation needed to present this case, an d, more particularly, because the lengthy 23



### delay in bringing defendant to trial may no t be laid at the government’s doorstep.” Id. at 24

### 8 76-77. We added later in the opinion that “the length of El-Hage’s detention weighs 1



### heavily in his favor in his argument that hi s due process rights have been violated.” Id. 2



### at 80. 3



### In an earlier case, we condemned as uncon stitutionally excessive the detention of 4



### two defendants charged with participating in the robbery of a Wells Fargo depot by 5



### paramilitary Puerto Rican nationalists. Gonzales Claudio , 806 F.2d 334. The 6



### defendants in that case had been held for fo urteen months, and their trial, set for four 7



### months following the disposit ion of their appeal, was expected to last eight months 8



### more. Id. at 335. 9



### In considering Briggs’s claim below, the district judge noted the discrepancy in 10



### the outcomes of these cases, observed that length of detention is not dispositive, and 11



### proceeded to consider the other relevant factor s. Order of July 13, 2012, at 2. Finding 12



### that each of these factors weighed against Br iggs, the district judge determined that “the 13



### totality of the circumstances” did not su pport a finding of due process violation. Id. 14



### We affirm this holding. But we emphas ize that we are deeply troubled by the 15



### length of Briggs’s detention. We stress, moreover, that our repeated statements that 16



### length of detention alone is not dispositive mu st not be read to authorize detentions of 17



### any length simply because the other relevant factors weigh against the defendant. There 18



### is no bright-line limit on the length of detent ion that applies in all circumstances; but for 19



### every set of circumstances, due process does im pose some limit. Although we affirm the 20



### district judge’s ruling that the other releva nt factors weigh sufficiently strongly against 21



### Briggs to justify his ongoing detention at th is point, we find that the length of his 22



### detention is approaching the limits of what due process can tolerate. 23

### 9 Conclusion 1



### We are disturbed by Briggs’s long dete ntion. But we conclude, after weighing 2



### the relevant factors, that Briggs’s detention does not, at this time, violate due process. 3



### Our decision to uphold the district court’s ruli ng, however, is a close call. Because of the 4



### length of Briggs’s detention, due process dema nds that the district court begin Briggs’s 5



### trial, or set reasonable bail, very soon. Accordingly, while we AFFIRM the district 6



### court’s holding that Briggs’s detention do es not now violate due process, we do so 7



### without prejudice to Briggs’s moving this court to recall the mandate and reinstate his 8



### appeal if the district court does not begin his trial, or set reasonable bail for him, on or 9



### before February 1, 2013. The Clerk of Court shall refer any such motion to this panel. 10



### The mandate shall issue forthwith. 11