21

- 483 USA v. Dunnigan



## 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 A SUMMARY ORDER @ ). A PARTY CITING TO 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, 1 held at the Thurgood Marshall United States Courthouse, 4 0 Foley Square, in the City of 2 New York, on th e 2 7 th day of August , two thousand twenty

- one. 3 4 PRESENT: 5 REENA RAGGI , 6 GERARD E. LYNCH , 7 MICHAEL H. PARK , 8 Circuit Judges. 9

_____________________________________ 10 11 HENRY LLOYD , 12 13 Defendant, 14 15 ROMAN DUNNIGAN , 16 17 Defendant

- Appellant, 18 19

v. 21

- 483

- cr 20 21 UNITED STATES OF AMERICA , 22 23 Appelle e . 24

_____________________________________ 25 26 FOR DEFENDANT

- APPELLANT: Brian K. Parker, Buffalo, New York 27 28 FOR APPELLEE: Tiffany H. Lee and Katherine A. Gregory, 29 Assistant United States Attorneys, Western 30 District of New York 312 Appeal from a n order of the United States District Court for the Western District of New 1

York ( Arcara
, J

. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the February 18, 2021 order of the district court is AFFIRMED

. 4

Defendant

- Appellant Roman Dunnigan appeals from a n order of the district court denying 5

his motion for release pending sentencing. 1 The district court’s order of detention pending 6

sentencing qualifies as a final appealable order. See 18 U.S.C. § 3145(c). The district court found 7

that Dunnigan failed to demonstrate a substantial likelihood that his post

- trial motions to set aside 8

the jury’s verdict and for a new trial will be granted. See id. § 3143(a)(2). The district court also 9

found that other exceptional circumstances did not render Dunnigan’s detention inappropriate. See 10

id. § 3145(c). In an appeal from a bail d etermination, we review a district court’s legal conclusions 11

de novo and its factual findings underlying those legal conclusions for clear error. See United 12

States v. Abuhamra , 389 F.3d 309, 317 (2d Cir. 2004). We assume the parties’ familiarity with 13

the underlying facts, the procedural history of the case, and the issues on appeal. 14

A criminal defendant who has been convicted of “an offense for which a maximum term 15

of impris onment of ten years or more is prescribed in the Controlled Substances Act” but not yet 16

sentenced must generally be detained unless (1) “ t he judicial officer finds there is a substantial 17

likelihood that a motion for acquittal or new trial will be granted . . . ” and (2) “the judicial officer 18

finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any 19

other person or the community.” 18 U.S.C. §§ 3142(f)(1)(C), 3143(a)(2). Even if detention is 20

appropriate under secti on 3143(a)(2), a criminal defendant “may be ordered released, under 21

appropriate conditions, by the judicial officer,” if “there are exceptional reasons why such person’s 22

1 Dunnigan appears to have mis labeled his brief as a “Memorandum in Support of Motion for Release Pending Trial.” The substance of his filing, however, indicates he appeals the district court’s denial of his motion for release pending sentencing. We thus construe Dunnigan’s filing

as an appeal of the district court’s denial of that motion.3 detention would not be appropriate.” 18 U.S.C. § 3145(c). This statutory framework c reates “a 1

presumption in favor of detention” that places a “plainly substantial” burden of proof on the 2

defendant seeking release. Abuhamra , 389 F.3d at 319

. 3

The district court did not err by denying Dunnigan’s motion for release pending sentencing. 4

The court reasonably concluded that Dunnigan failed to meet his burden of showing a substantial 5

likelihood that his motions to set aside the jury’s verdict and for a new trial will be granted . The 6

district court also reasonably concluded that Dunnigan fai led to present extraordinary 7

circumstances showing his detention would be inappropriate. It considered his arguments, 8

including that his post

- trial motions will succeed due to insufficient evidence, that he is not a flight 9

risk or danger to society becaus e of his unblemished fourteen

- month record on pretrial release, 10

that his conviction does not increase his incentive to flee because he faces the same potential 11

sentences post

- trial as he did pretrial , and that exceptional circumstances warrant his release 12

because the COVID

- 19 pandemic has made it more difficult to communicate with his attorneys 13

while incarcerated

. We agree with the district court that these arguments do not overcome the 14

presumption in favor of detention

— Dunnigan failed to carry his “plainly substantial” burden of 15

satisfying the requirements of 18 U.S.C. § 3143 (a)(2) or § 3145(c) to warrant his release pending 16

sentencing. Abuhamra , 389 F.3d at 319

. 17

In sum, we agree with the district court’s legal conclusions and identify no clear error in 18

the district court’ s factual findings. We have considered Dunnigan’s other arguments and 19

conclude that they are without merit. The district court’s detention order is thus AFFIRMED. 20

FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk of Court 22 23