United States of America v. English

Filing 920110120

Opinion

10-3258 (L) USA v. English

10-3258-cr, 10-4045-cr USA v. English

10-3258-cr, -4045-cr USA v. English
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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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August Term, 2010 (Argued: January 4, 2011 Decided: January 20, 2011)

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Docket Nos. 10-3258-cr, -4045 cr

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UNITED STATES OF AMERICA, Appellee, - v. DEREK ANDRE ENGLISH and RONALD ANDERSON, Defendants-Appellees. Before: KEARSE, WINTER, and HALL, Circuit Judges. Appeals from orders of the United States District Court for the Southern District of New York, Colleen McMahon, Judge,

denying defendants' motions for bail pending trial, their pretrial detention pursuant to 18 U.S.C. of risk of flight and danger to the community. Affirmed.
§

and ordering

3142 on grounds

SANTOSH ARAVIND, Assistant United States Attorney for the Southern District of New York, New York, New York, for Appellee. RICHARD B. LIND, New York, New Defendant-Appellant English. York, for

RONALD RUBINSTEIN, New York, New York (Rubinstein & Corozzo, New York, New York, of counsel), for Defendant-Appellant Anderson.

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KEARSE, Circuit Judge: Defendants have been Derek Andre English and Ronald Anderson, on charges of 21 of conspiring
§§

who in and

indicted in

to

traffic

cocaine,

violation

U.S.C.

846,

841 (a) (1),

841(b) (1) (A), 18 U.S.C. entered Dist
§§

and engaging in firearms offenses,

in violation of

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922 (g) (1), 924 (c) (1) (A) (i), and 2, appeal from orders the United States District Court for the Southern

in

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ct of New York by Colleen McMahon, Judge, to whom their case

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is assigned, denying their applications for bail pending trial and ordering their pretrial detention pursuant to 18 U.S.C. on grounds of risk of flight and danger to the
§

10

3142(e)

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community.

Following their arrests but prior to the filing of the indictment and the assignment of the case to Judge McMahon, defendants had

unsuccessfully applied for bail before a magistrate judge and had appealed the denial to District Judge Lawrence M. McKenna, who was then sitting as the "Part I" judge for, inter alia, certain see their

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emergency S.D.N.Y.

matters Local

and 3,

preliminary 7(a)-(b)
i

criminal Judge

proceedings, denied

Rules

McKenna

motions, finding that although the combinations of bail conditions proposed by English and Anderson, respectively, were sufficient to assure their future court appearances as required, a rearm that

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defendants had possessed persuaded him that these defendants posed danger McMahon, was to the community. In challenging the orders of Judge

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English and Anderson contend principally that the judge against their bail applications, that she

predisposed

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impermissibly revisited Judge McKenna's finding that they posed no
- 2 -

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risk of flight, information

and that they should be released in light of new on Judge McKenna's danger-based denial of

bearing

their bail motions.

Finding no merit in defendants' contentions,

we affirm the orders of the district court.

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I .

BACKGROUND

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All of the events described below occurred in 2010 unless otherwise noted. English and Anderson were arrested on April 28 agents investigating a

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by Drug Enforcement Administration ("DEA") drug-trafficking organization. on April following. 29 ("Complaint"), DEA agents

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According to the complaint filed

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the events of April 28 included the a Federal Express package

intercepted

containing approximately five kilograms of cocaine; the person who attempted to collect the package was arrested and agreed to become a cooperating witness ("CW"). information provided by the (See Complaint " CW, the agents
6-7.)

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Acting on from a car

seized

belonging to one Rodney Johnson another package containing five kilograms of cocaine and a gun in a hidden compartment. " 8(a), 10.) (See

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DEA agents also conducted surveillance of a Queens,

New York, house that the CW described as a stash house for drugs, money from drug sales, observed English, and guns. and (See id. Johnson , 8 (b) . ) arrive and The agents enter the

Anderson,

house; when English exited carrying a bag and began to drive away, he was stopped and arrested; the bag was found to contain

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approximately 10 kilograms of cocaine.
- 3 -

(See id. "

11(a)-(c).)

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After arresting English, the agents arrested Anderson and Johnson. In subsequently executing a agents found, appeared to inter alia, be cocaine search warrant for the house, the

"(1) two kilograms of a substance that in the kitcheni [and] (2) (3) an undetermined

quantity of money in the living roomi

a firearm that

appears to be a machine gun with what appears to be a silencer in the hallway closet." On April 29, (Id.
~~

11(d)-(e).)

English and Anderson were presented before Fox and moved to be released on bail.

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Magistrate Judge Kevin N.

The Assistant United States Attorney (HAUSA") opposed the motions and asked that defendants be detained on the grounds that they were flight risks and posed a significant danger to the community. By letter dated May 3, 2010, the government reiterated the main

allegations of the Complaint, including that the agents had found in the stash house what appeared to be a machine gun, and added, inter alia, that [b]oth defendant[]s have significant criminal histories, including prior narcotics felonies. Specifically, English was sentenced to a term of 10 years' imprisonment for conspiracy to traffic in cocaine and Anderson was sentenced to a term of 28 months' to 7 years' imprisonment for criminal possession of a controlled substance in the fifth degree. As a result, both defendants are facing 20 [ - ] year mandatory mini mums pursuant to 21 U. S . C . § 841(b) (1) (A). The substantial prison sentence faced by these defendants provides a considerable incentive to flee. Multiple orders of protection have been filed against Anderson, including at least one currently active such order. As memorialized in the Pretrial Services report, English tested positive for marijuana on the day he was presented on the instant charge.

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(Letter from AUSA Michelle K. Parikh to Magistrate Judge Fox dated May 3, 2010, at 3 4.) stated, At the May 4 hearing on the motions, the inter alia, that the stash house was

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government

also

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leased in Anderson's name and that the landlord had seen Anderson there on several occasions 2010 ("May 4 Tr. n), at 4) i (see Joint Hearing Transcript, May 4, that when he was arrested, (id. at 5)
i

Anderson

"was running from the location"

that the search of the

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house revealed not only the gun and silencer, but also ammunition (see id. at 4) i and that "both of of these defendants have been the DEA to a much to larger violent

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linked

through

numerous

sources "have

narcotics

conspiracy"

and

also

been

linked

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activity as part of that conspiracy" (id. at 6). The magistrate judge denied the bail motions. finding that both defendants had rebutted
§§

Al though statutory (f) (1), he

the

presumption of flight risk,

see 18 U.S.C.

3142 (e),

concluded that in light of the large quantity of cocaine involved, the sophistication defendants' narcotics operation, and the

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weapon recovered from the stash house, to the community. May 4 Tr. 25-27.)

defendants posed a danger

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A.

The Proceedings Before Judge McKenna English and Anderson appealed, and their motions came

before Judge McKenna as the Part I

judge on May 5.

The court

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indicated that it was particularly concerned about the gun found in the stash house. ("May 5 Tr."), at 5.) Joint Hearing Transcript, May 5, 2010

English's attorney argued principally that
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there was no evidence that English had been to the closet in which the gun was found; Anderson I s attorney argued principally that although he leased

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Anderson was unarmed when arrested and that, the house,

none of his personal belongings were on the premises. The government responded principally that

(See id. at 6, 16 18.)

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it was highly unlikely that English and Anderson, handling large quantities of narcotics in the house, did not know that a machine gun, silencer, and ammunition were there. (See id. at 19.)

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In response to an inquiry from the court as to why the government's letter to the magistrate judge said that the weapon found in the closet merely "appear [ed] AUSA stated that the events were developing rapidly. The agent who was swearing out the complaint had not actually seen the firearm in question. The agents who had seized it identified it as a machine gun but had not had an opportunity to test it. And so in an abundance of caution, in the event that maybe it was semiautomatic as opposed to a machine gun, a fully automatic machine gun, I characterized it as a weapon that was -that appeared to be a machine gun. . Your Honor, I understand from both agents that they have since confirmed that the gun is a MAC 11 and that is a fully automatic firearm. (May 5 Tr. 20 - 21 . ) After hearing additional argument I Judge McKenna stated
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to be a machine gun,

the

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that he viewed it as an extremely close case but concluded that the detention orders should not be disturbed. bail packages proposed by defendants He found that the were sufficiently

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substantial to ensure when needed in court.
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"that these defendants would be available (Id. at 33.)
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However, he found that, in

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light of

the gun found

in the stash house,

defendants posed a

danger to the community.

The court felt there was little or no

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danger continued drug selling. I have the feeling that the bail packages would deal with that. Home confinement would deal with that. Maybe the recognition that to be caught doing even tiniest bit of drug dealing while you're under an indictment wi th a mul ti (-] kilo case might not be the smartest thing in the world to do, it might end up in front of the jury with the rest of it, would probably prevent that. Now my experience is that most people arrested and on bail for drug offenses do not, while they're on bail pending trial, continue dealing drugs . . . .

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The gun is the problem, in my view. From the gun you can certainly draw an inference of, somebody who possess res] a gun- and I haven't heard anybody suggest this gun was legally possessed or it was a licensed weapon--you can always infer that the person who possesses a gun is prepared to use it for his benefit. I am aware that from many many many many cases that in the narcotics trade, the context, the guns are typically possessed not with a view to harm to the general public, but with a view to protection against other drug dealers or people who are in the trade of robbing drug dealers t which is not an uncommon situation. However a oun is a oun. A machine gun is a machine gun. There are witnesses out there. And I'm going to deny bail for the sole reason of the gun. I want to make that record clear if somebody wants to appeal. It's if the gun had not been found in the closet, I would accept these bail packages and these defendants would have been released on bail on the basis of those packages.
t

(May 5 Tr. 33-35 (emphases added).) Thereafter, the government t by letter dated May 14, 2010

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("Government May 14 Letter"), relayed to defendants, inter alia t a laboratory report dated May 12 t 2010 t from the Firearm Analysis

Section ("FAS") of the New York Police Department with respect to
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the operability of the gun found in the stash house Report") . The report,

("NYPD Lab.

characterizing the gun as a semiautomatic

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pistol, stated in pertinent part that the weapon had been tested and is not operable; pistol received without hammer pin, hammer pin retainer, and sear spring holder . . . Unable to test fire, parts unavailable in FAS . Pistol has the following assault weapon characteristics: threaded barrel, copy of a SWD M-10 type pistol. Pistol also received with a barrel extender (wrapped in black tape) which does attach to the threaded barrel (overall length attached is 20 7/8"). (NYPD Lab. Report.) The government's accompanying letter stated found in the stash

that "certain characteristics of the firearm" house thus

"differ from the Government's understanding of those

characteristics at the time of the bail hearing in this case on May 5, 2010." (Government May 14 Letter at 1-2.) defendants asked Judge McKenna to reconsider

On May 16,

his gun based denial of their bail motions "in light of dramatic new evidence" that the weapon in question was not a machine gun (Letter from Richard B. Lind to Judge McKenna On May 18, English and Anderson, along

and was inoperable.

dated May 16, 2010, at 1.)

with Johnson, were indicted and charged with conspiring to possess five kilograms and more of cocaine with intent to distribute, violation of 21 U.S.C. and carrying a
§§

in

846, 841(a) (1), and 841(b) (1) (A); using during and in relation to a drug-

firearm

trafficking crime, and possessing a firearm in furtherance of such a crime, in violation of 18 U.S.C.
§§

924 (c) (1) (A) (i) and 2; and

being felons in possession of a firearm, in violation of 18 U.S.C.
§

922 (g) (1).

The case was assigned to Judge McMahon.
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On May 20,

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Judge

McKenna

referred

the

reconsideration

motions

to

Judge

McMahon.

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B.

The Proceedings Before Judge McMahon At the initial pretrial status conference before Judge

McMahon, the AUSA informed the court of the nature of the charges and stated that the amount of cocaine involved was "approximately 27 kilograms. Tr."), at 2.) bail hearing.
n

(Joint Hearing Transcript, June 9, 2010

("June 9

English and Anderson asked the court to schedule a After discussing possible dates for such a hearing,

and determining that defendants had already been denied bail by the magistrate judge and Judge McKenna, Judge McMahon said "I must tell you in a 27-kilo case I don't think I've ever let anybody out. You're free to come and make your pitch" (id. at 5) . On July 20 and 28, the court held bail hearings for

Anderson and English,

respectively.

At Anderson's hearing

Hearing Transcript, July 20, 2010 ("Anderson Tr.")), his attorney emphasized the new information as to the nature and inoperability of the gun, had arguing denied that bail both the on the magistrate basis of judge and Judge the government's

McKenna

representation that Anderson had in his closet a machine gun and a silencer. Judge McMahon stated that by Judge (Anderson McKenna, Tr. 3. ) she could not "You're Judge review the

order entered with me.
II

stating However,

starting over McMahon told

Anderson I s attorney to "forget about the gun. take the gun into account.

I'm not going to (Id. )

lim going to ignore it.1I
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After hearing argument, application for bail.

Judge McMahon denied Anderson's

The court noted that, with respect to the

crimes charged in the indictment, there is a statutory presumption against bail, rebut ted and it concluded that the presumption "hasn't been case." (Id. at 18.) The court found that

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in thi s

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Anderson posed both a danger to the community and, notwithstanding his" incredibly strong" flight: The nature and the circumstances of the crime auger against bail. The fact that the defendant is facing a 20 [-] year mandatory minimum sentence gives him a tremendous incentive to flee and augers against granting bail. The weight of the evidence against the defendant is a factor that is to be taken into consideration. Defense counsel suggested it is not an important factor. As far as this Court is concerned, it is one of the most important factors to consider. The case against the defendant is incredibly strong. The fact that it's a triable case, from a lawyer's perspective, does not mean that it's not a strong case. Even the Court's assessment of the evidence, after seeing thousands upon thousands of these cases, it is a very strong case. The history and characteristics of the defendant, including his family ties, employment, community ties and past conduct cuts both ways. The defendant has a large and incredibly supportive and loving family. He has ties. He's a life [long] resident of Queens. He has ties to the community. He has been engaged in employment. Those are positive factors. He has a history with law enforcement going back to 1995 . . . . And so as far as I'm concerned, his prior history, his past conduct cancels out the positive factors, including family ties, employment and community ties. The nature and the seriousness, the danger of the community or to individuals is manifest from the charge. Unlike Judge McKenna, I did not find it at - 10 proposed bail package (id.), a risk of

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all impossible to believe that someone who is, say, on electronic monitoring could not engage in further sale of narcotics. All you need is a telephone and access to a person or persons who are willing to participate in the crime. (Anderson Tr. 16-18 (emphases added).) At July 28, English I s
2010

detention hearing

(see Hearing Transcript, Richard B. Lind,

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(IIEnglish Tr. II) ),

his attorney,

began by arguing that Judge McMahon could not engage in a de novo consideration of whether to grant bail but could consider only how the new information stating about he the had
(rd.

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11

gun sought at 2.)

affected only

Judge

McKenna1s

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findings, Judge

that

IIreconsideration of pointed out that

McKenna I s

order. II

Lind

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II [w] hen Judge

McKenna ordered (id. at 4) McKenna]
i

my client detained,

it was

based solely on the gun II of dangerousness, [Judge

II [w] i th regard to the issue said that the only issue, gun,

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otherwise he would have given bail,

was the issue of (id. at 3) the

[the]
i

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that it was a machine gun with a silencer ll II [a] couple days later the government

and that so-called

said that (id. at 4).

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machine gun was an inoperable pistol ll

Lind stated

that he had immediately asked Judge McKenna for reconsideration, but as the case was now before Judge McMahon, following the filing of the indictment, he sought reconsideration of the dangerousness issue from Judge McMahon. Judge McMahon (See id. at 5.) stated that she understood the new

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information with respect to the gun and that she would not take the gun into account (English Tr. 3) (see id.
11 i

27
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but she would consider the She pointed out that

request for bail de novo

at 4).

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2

"Judge McKenna and I are Judges of coordinate jurisdiction and I'm not the Court of Appeals.
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(Id.

at

3.)

She stated that

if

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English merely wanted reconsideration of Judge McKenna's order he would have to seek it from Judge McKenna; if he wanted review of Judge McKenna's order he would have to go to the Court of Appeals; if he wanted a grant of bail by Judge McMahon, she would consider the request as "a totally new application. After hearing argument, presented both a flight him detained: This is a case in which the evidence is extraordinarily strong. The defendant was arrested with 10 kilograms of cocaine in his possession. His co-conspirators had cars that were equipped for drug dealing and one of them had a weapon indicating that there was the possibility of violence in connection with this particular incident. That, alone, would be enough for me to keep the defendant in. I acknowledge that this defendant has a strong bail package, he has substantial ties to the community; however, he is looking at, I think, a 20-year mandatory minimum. . . . A 20-year mandatory minimum sentence which overcomes virtually any tie to the community and gives him an extraordinary incentive to flee. The defendant's conviction for narcotics in the past is indeed an old conviction but it does not give the Court any comfort that the defendant was in fact convicted and sentenced to 10 years, however long he served for narcotics, and was then later arrested with 10 kilograms of cocaine in his possession and that suggests a strong possibility of recidivism notwithstanding the defendant's strong family ties to the community. The defendant tested positive for drugs[,] which raises the issue of non-appearance. The Court concludes circumstances and especially the government's case and sentence which the defendant - 12 that in all of the oi ven the strength of the mandatory minimum is facing, that there
If

(Id. at 3-4.)

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Judge McMahon found that English

sk and a safety risk, and thus ordered

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are no bail packages, even this extraordinarily strong bail packager,] that would guarantee his appearance, and I am denying bail. (English Tr. 13-14 (emphases added).)

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II.

DISCUSSION

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English and Anderson have appealed from Judge McMahon's detention orders and have moved in this Court for release on bail
l

arguing principally that Judge McMahon was required to defer to findings made by Judge McKenna except to the extent that the new information called those earlier findings into question; that the district court was improperly "predisposed" against their bail

applications; and that the record warrants their release on bail. English also contends that the order for his detention should be vacated because it was
§

not

accompanied by written findings

as
l

required by 18 U.S.C.

3142(i) (1).

For the reasons that follow

we find no merit in defendants' contentions.

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A.

The Statutory Framework Section 3142 of Title
18 1

enacted as part
§§

of the Bail ("Bail Reform
I

Reform Act Act")
I

of

1984

1

see

18

U.S.C.

3141-3156

requires that an accused be detained pending trial where
§

following a hearing in accordance with

3142 (f)

I

"the judicial

officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and - 13 the community." 18 U.S.C.

1

§

3142 (e) (1) .

liThe facts the judicial officer uses to support a to subsection (e) that no condition or

2
3 4

finding

pursuant

combination of conditions will reasonably assure the safety of any other person and the community shall convincing evidence. issued under
§
II

be

supported by clear and In a detention order shall

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Id.

§

3142 (f) (2) . lithe judicial

3142 (e) (1),

officer

include written findings of reasons for the detention Subsection rebuttable (e) of that

fact

and a written statement of the II Id.
§

3142 (i) (1) . that or there is a of

§

3142
II

provides condition

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presumption

no

combination

conditions will reasonably assure" against flight or danger where probable cause supports types term of a of finding that the person seeking bail "an offense or more 801 for is et

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committed certain which a maximum in

offenses,

including of

imprisonment

ten years Act (21

prescribed

the
§ §

Controlled

Substances

U. S. C.

seq.) ," 18 U.S.C.
§]

3142 (e) (3) (A), or "an offense under [18 U.S.C.
II

924 (c),"

id.

3142 (e) (3) (B) .

[A]n indictment returned by a

duly constituted grand jury conclusively establishes the existence of probable cause for the purpose of
§

triggering the

rebut table

presumptions set forth in

3142(e)."

United States v. Contreras,

776 F.2d 51, 55 (2d Cir. 1985). Where there is such a presumption, the defendant IIbears a

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limited burden of production--not a burden of persuasion--to rebut that presumption by coming forward with evidence that he does not pose a danger to the community or a risk of flight.
II

United

States v. Mercedes,

254 F.3d 433, 436 - 14 -

(2d Cir. 2001).

Satisfying

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

the

burden

of

production

does

not

eliminate

the

presumption

favoring detention;

it "remains a factor to be considered among Id. At all times, however,

those weighed by the district court."

lithe government retains the ultimate burden of persuasion by clear and convincing evidence that the defendant presents a danger to the community," and "by the lesser standard of a preponderance of the evidence that the defendant presents a risk of flight. Subsection government, (f) of
§
1I

Id.

3142 provides that,

on motion of the

a hearing must be held with respect to a detention
§

request in a case that triggers the 18 U.S.C. that such
§

3142(e) (3) presumption,

3142 (f) (1), or in a case that involves lIa serious risk person will flee," id.
§

3142 (f) (2) (A).

Where

the

judicial officer perceives a serious risk of flight,

a detention
II

hearing may be held lIupon the judicial officer's own motion. The factors determining whether that the there

Id.
II

judicial off icer must consider conditions of release that

in

are

will

reasonably assure the appearance of the person as required and the safety of any other person and the community, II include lithe nature and circumstances of the offense charged, offense weight is of a the crime of violence, II against or including whether the a firearm; history lithe and

involves person"
i

evidence

the

lithe

characteristics of the person,lI including his IIphysical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history criminal history,
i

relating to drug or alcohol abuse,

and record

concerning appearance at court proceedings" 15 -

and "the nature and

1
2

seriousness would be

of

the

danger

to

any person release.
II

or

the

community that
§

posed by the person's

18 U.S.C.

3142 (g).

3
4

The same factors are to be considered in determining "whether the presumptions of dangerousness and flight States v. Mercedes, 254 F.3d at 436. We review a district court's findings as to the accused's risk of error. Cir. flight See, and potential danger to the community for clear (2d are rebutted.
II

United

5 6 7
8

, United States v. Ferranti, 66 F.3d 540, 542 (danger to the community) i (2d Cir. 1987)

9 10 11 12 13 14 15 16 17 18

1995)

United States v. Melendez(risk of flight). "Where

Carrion, 820 F. 2d 56, 61

there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Bessemer City, 470 U.S. 564, 574 (1985). de novo, and lithe court's ultimate
II

Anderson v.

We review rulings of law may be subject to

finding

plenary review if it rests on a predicate finding which reflects a misperception of a legal rule applicable to the particular factor involved," United States v. cert. denied, 484 U.S. 840 Shakur, (1987). 817 F.2d 189, 197 (2d Cir.),

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B.

The Contention that Judge McMahon Was Barred from Considering Flight Risk Defendants' principal contention on these appeals is that

because Judge McKenna had stated that the bail packages proffered by defendants were sufficient to assure against risk of flight,

and that he would grant their bail motions were it not for the gun, risk Judge McMahon was precluded from considering the of flight. We rej ect this contention. - 16 issue of judge

A district

1 2 3
4

before whom a bail motion is properly made should consider the subsection
§

(g)

factors

and make the determinations required by

3142.

We see no flawed procedure here. First, Judge McMahon's view that she could not entertain A

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an appeal from the orders entered by Judge McKenna was correct.

judge of lithe court having original jurisdiction over the offense"
may" [r] eview fl

a

detention order only where

the

"person

[wa] s

ordered detained by a magistrate judge, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court." (emphases added). 18 U. S. C.
§

3145 (b)

As both Judge McMahon and Judge McKenna are

judges of the court having original jurisdiction over defendants' offenses, neither is authorized to review a detention order issued by the other. Second, the reconsideration motions made to Judge McKenna were properly referred to Judge McMahon. "In a criminal case,

after an indictment has been returned by the Grand Jury . . . , the magistrate judge on duty will randomly draw the name of a

judge in open court from the criminal wheel, and assign the case to said judge for all purposes thereafter." 8(a) (emphasis added). Finally, we see nothing in the Bail Reform Act to suggest that a judge to whom a criminal case is assigned for all purposes may not fully consider all of the
§

S.D.N.Y. Local Rule

3142(g) factors when presented Indeed, as set out above,

with a motion for pretrial release.

when such a judge perceives a serious risk that a defendant will - 17

1 2 3 4 5 6 7 8

flee, he or she is authorized to convene a detention hearing "upon [his or her] own motion." 18 U.S.C.
§

3142 (f) (2) (A).

Implicit in

this provision is the concept that the judge in charge of the case is not bound by prior rulings as to risk of flight. Accordingly, we reject defendants' contentions that Judge McMahon was bound by Judge McKenna's view that the bail packages proffered by English and Anderson were sufficient to assure

against the risks that they would flee.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C.

English's Contention that the Writing Requirement Was Not Met We also rej ect English's contention that his detention

order should be vacated because it was not accompanied by written findings, published as required by opinion,
§

3142 (i) (1). on the

While we have not, contours of the

in a

ruled

writing

requirement in that section, we have determined that a transcript of the court's findings and reasons will satisfy a writing

requirement in the context of a bail revocation proceeding under 18 U.S.C.
§

3148.

See United States v. Davis,
§

845 F.2d 412

(2d

Cir. 1988). to what
§

Although we noted in Davis that revocation order must We held that
§

3148 is silent as found guidance in

a

contain,

we

3142 (i) (1) .

3142 (i) (1) 's requirement that the

court's findings and reasons for ordering detention be stated in writing should be equally applicable to an order revoking release pursuant to
§

3148,

Davis,

845

F.2d at 415,

for
§

II

[w]hether an
§

individual is detained without bail pursuant to the result is the same," 845 F.2d at 414.

3142 or

3148, of

A requirement

- 18 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

written findings is generally intended to ensure that the district court's reasons for its decision are sufficiently clear to permit meaningful appellate review, and in remanding for such findings in Davis we stated that lithe district court's findings and its

reasons for revocation and detention transcript of the proceedings,1I id. at 415. Barth, 899 F.2d 199, 201 (2d Cir. 1990)

may be embodied in a Cf. United States v.

(transcript satisfies a

probationer's due process entitlement to "'a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation'lI (quoting Black v. Romano, 471 U.S. 606, 612

(1985))), cert. denied, 498 U.S. 1083 (1991). Here, as in Davis, we see no meaningful distinction

between detention orders and bail revocation orders insofar as the need for written findings is concerned. And we conclude, in

accord with Davis, that where the court's findings and reasons for issuing a detention order are of the hearing, clearly set out of in the written a writing is

transcript satisfied.

the

requirement

The transcripts in the present case met this standard.

19 20 21 22 23 24 25

D.

The Alleged Bias Defendants' contention that Judge McMahon was

"predisposed ll to deny their bail motions is based principally on the judge's statement at the June 9 status conference that "I must tell you in a 27-kilo case I don't think I've ever let anybody out" (June 9 Tr. 5). In considering a claim of judicial bias, we in the context of the

review the court's comments and rulings - 19 -

1

record as a whole, see, 343 (2d Cir. 1993)
I

~,

United States v. Rosa, 11 F.3d 315, 511 U.S. 1042 (1994)
i

2
3
4

cert. denied,

and even and even United

"expressions of impatience,

dissatisfaction,

annoyance,

anger" would not establish bias or partiality,
==~~,

Liteky v.

5 6
7

510 U.S. 540, 555-56 (1994). We see no basis in the above-quoted statement or any other

statement combination, bias.

by

Judge an

McMahon, inference

whether that she

viewed held any

singly

or

in

8 9

for

impermissible

Rather,

the record shows that when English and Anderson she immediately sought to schedule it. At

10
11

requested a bail hearing,

A separate hearing was eventually held for each defendant. each hearing, addressing the point that the

12 13 14 15 16
17

after-acquired

laboratory evidence revealed that what had been found in the stash house were not a machine gun and a silencer, as had been

represented in opposition to the prior bail motions, Judge McMahon promptly stated that she would not consider the gun. Neither

defendant has called to our attention any defense argument that was not considered. by English Judge and McMahon reviewed the bail packages and noted that Tr. they 14) were, and

18 19 20 21
22

proffered

Anderson

respectively, "incredibly concluded,

"extraordinarily strong" (Anderson was

strong" Tr. 18). to

(English Judge do, that

McMahon other

simply factors

as

she

entitled

23 24 25 26

outweighed the proffered bail packages in the analysis of flight risk and community safety. Her reasons were explicitly tied to

the facts before the court and were fully explained on the record. The record does not support defendants' claims of bias. 20 -

1

E.
Finally, as to the merits, neither defendant makes any

2

3
4

concrete argument as to error in the district court! s findings, and we see no basis on which to overturn them. Both English and
§

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anderson are charged with offenses under 18 U.S.C. charge triggers the
§

924(c)

i

that

3142(e) presumption against bail.

Both are

charged with drug-trafficking conspiracy in violation of 21 U.S.C.
§

846 which,

in light of their prior felony convictions, exposes

them to mandatory minimum prison terms of 20 years i that charge too triggers the presumption against bail, each defendant seems quite strong. As set out in greater detail McMahon considered the above--that McMahon! s flight were
§

and the case against

in Part I. B.

above,

Judge

3142(g) factors--summarized in Part II.A. to each defendant. Although Judge

relevant

findings to

were more extensive with respect to risk of to the community, both concerns are

than

danger

reflected in her findings. that

With respect to Anderson,

she noted

nthe danger of the community or to individuals is manifest

from the charge/!! and that the proposal for electronic monitoring did not eliminate the danger that he would 1!engage in further sale of narcotics!! by telephone with a willing collaborator. Tr. 18.) (Anderson

As to English, Judge McMahon pointed out that he and his were equipped for drug dealing and violence; she

codefendants

stated that !!that/ alone, would be enough for me to keep [English] inn (English Tr. 13); and she found that his record suggested a - 21 -

1 2 3
4
5

If

strong possibility of recidi vism lf

(id.) - -plainly a reference to ficking, not to the risk of

the danger of continued narcotics t flight.
We

conclude

that

Judge

McMahon's

findings

were

amply

supported by the evidence and that her orders of detention were proper substantially for the reasons stated on the record.

6

7

CONCLUSION

8

We

have

considered

all

of

defendants I

contentions

in

9 10 11 12

support of their appeals and of their motions to have this Court grant them release on bail, and we have found them to be without merit. The orders of the district court are affirmed. The bail

motions are denied.

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