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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 27th 3 day of August, two thousand twenty-one.

4

5 PRESENT:

6 REENA RAGGI,

7 GERARD E. LYNCH,

8 MICHAEL H. PARK,

9 Circuit Judges.

10 _____________________________________

11

12 HENRY LLOYD,

13

14 Defendant,

15

16 ROMAN DUNNIGAN, 

17

18 Defendant-Appellant,

19

20 v. 21-483-cr

21

22 UNITED STATES OF AMERICA,

23

24 Appellee.

25 _____________________________________

26

27 FOR DEFENDANT-APPELLANT: Brian K. Parker, Buffalo, New York 

28

29 FOR APPELLEE: Tiffany H. Lee and Katherine A. Gregory, 

30 Assistant United States Attorneys, Western 

31 District of New York 
2

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

2 York (Arcara, J.).

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

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

5 Defendant-Appellant Roman Dunnigan appeals from an order of the district court denying 

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

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

8 that Dunnigan failed to demonstrate a substantial likelihood that his post-trial motions to set aside 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1 Dunnigan appears to have mislabeled 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

1 detention would not be appropriate.” 18 U.S.C. § 3145(c). This statutory framework creates “a 

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

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

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

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

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

7 district court also reasonably concluded that Dunnigan failed to present extraordinary 

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

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

10 risk or danger to society because of his unblemished fourteen-month record on pretrial release, 

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

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

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

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

15 presumption in favor of detention—Dunnigan failed to carry his “plainly substantial” burden of 

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

17 sentencing. Abuhamra, 389 F.3d at 319. 

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

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

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

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk of Court

23