USA v. Robert Stanford


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USA v. Robert Stanford Doc. 0 Case: 10-20466 Document: 00511220435 Page: 1 Date Filed: 08/31/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED August 31, 2010 N o . 10-20466 S u m m a r y Calendar Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA P la in t iff - Appellee v. R O B E R T ALLEN STANFORD, also known as Sir Allen Stanford, also known a s Allen Stanford D e fe n d a n t - Appellant and M I C H A E L MARTIN ESSMYER, Sr., Esq., Appellant Appeals from the United States District Court for the Southern District of Texas USDC No. 4:09-CR-00342-1 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 10-20466 Document: 00511220435 Page: 2 Date Filed: 08/31/2010 No. 10-20466 I n this, his third appeal to this court protesting the district court's decision r e q u ir in g pretrial detention, defendant Robert Allen Stanford ("Stanford") a r g u e s that continued pretrial detention violates his rights to due process under t h e Fifth Amendment and to effective assistance of counsel under the Sixth A m e n d m e n t . We disagree and therefore affirm the district court's denial of S t a n fo r d 's motion for pretrial release. The background facts and procedural history of Stanford's case are t h o r o u g h ly explained in our prior decisions; we have no need to repeat those fa c t s here. See United States v. Stanford (Stanford II), 367 F. App'x 507 (5th Cir. F e b . 17, 2010); United States v. Stanford (Stanford I), 341 F. App'x 979 (5th Cir. A u g . 24, 2009). On May 19, 2010, Stanford moved the district court to be r e le a s e d from custody, arguing that his continued detention violated various c o n s t it u t io n a l protections. The district court denied that motion in an m e m o r a n d u m order entered July 7, 2010. As to Stanford's Fifth Amendment a r g u m e n t , the district court applied the factors articulated in United States v. H a r e , 873 F.2d 796 (5th Cir. 1989), and concluded that Stanford's continued d e t e n t io n served regulatory purposes and thus comported with the Fifth A m e n d m e n t 's prohibition on punitive pretrial detention. The district court fu r t h e r concluded that Stanford's continued detention does not so interfere with h is ability to participate in trial preparation that it results in a deprivation of his S ix t h Amendment rights.1 " W e review questions of constitutional law de novo." United States v. G u id r y , 456 F.3d 493, 506 (5th Cir. 2006) (citing United States v. Romero-Cruz, 2 0 1 F.3d 374, 377 (5th Cir. 2000)); see also De Zavala v. Ashcroft, 385 F.3d 879, The district court also rejected Stanford's argument that continued detention violates the Eight Amendment's prohibition on excessive bail, reasoning that the Eighth Amendment does not require bail in all cases -- and that this was, as it had previous found, a case warranting the denial of pretrial release. Stanford does not challenge this aspect of the district court's order. 1 2 Case: 10-20466 Document: 00511220435 Page: 3 Date Filed: 08/31/2010 No. 10-20466 8 8 3 (5th Cir. 2004) ("We review due process challenges de novo."). In reviewing t h e district court's resolution of the legal questions de novo, we defer to the d is t r ic t court's findings of historical fact unless they are clearly erroneous. See A lls ta te Ins. Co. v. Abbott, 495 F.3d 151, 160 (5th Cir. 2007) ("To the extent r e le v a n t to the constitutional question, subsidiary facts are reviewed for clear e r r o r ." ); see also United Stats v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993) ("[W]e r e v ie w the district court's findings of historical fact in this case for clear error, b u t review its ultimate resolution of the constitutional due process [pretrial d e t e n t io n ] issue de novo."). The Due Process Clause of the Fifth Amendment forbids pretrial d e t e n t io n that is punitive, rather than regulatory, in nature. See United States v . Salerno, 481 U.S. 739, 747-48 (1987). The Supreme Court has generally u p h e ld the constitutionality of the Bail Reform Act, under which the district c o u r t here has ordered Stanford's pretrial detention, as serving regulatory and n o t punitive ends. See id. In doing so, however, the Court intimated that p r e t r ia l detentions may "become excessively prolonged . . . in relation to C o n g r e s s 's regulatory goal" as to be punitive in nature. See id. at 747 n.4. To d e t e r m in e whether pretrial detention becomes excessively prolonged and v io la t e s due process "requires assessment on a case-by-case basis, for the clause e s t a b lis h e s no specific limit on the length of pretrial confinement." Hare, 873 F .2 d at 801. We explained in Hare: I n determining whether due process has been violated, a court must c o n s id e r not only factors relevant in the initial detention decision, s u c h as the seriousness of the charges, the strength of the g o v e r n m e n t 's proof that the defendant poses a risk of flight or a d a n g e r to the community, and the strength of the government's case o n the merits, but also additional factors such as the length of the d e t e n tio n that has in fact occurred or may occur in the future, the n o n -s p e c u la tiv e nature of future detention, the complexity of the c a s e , and whether the strategy of one side or the other occasions the d e la y . 3 Case: 10-20466 Document: 00511220435 Page: 4 Date Filed: 08/31/2010 No. 10-20466 Id . Stanford has presented no new evidence that called for the district court t o reevaluate its conclusions on the factors relevant in the initial detention d e c is io n . Those factors, as we have previously concluded, quite compellingly call fo r Stanford's pretrial detention. S t a n fo r d has the means, the motive, and the money to flee. He faces a potential sentence of 375 years in prison, has access to an in t e r n a t io n a l network of contacts, has previously concealed his t r a v e ls , has demonstrated an ability to access funds from a c q u a in t a n c e s even if his own assets are frozen, has established his p r im a r y residence in Antigua and Barbuda for the past fifteen y e a r s , and has little family ties in Houston, Texas, having only r e c e n t ly established some of those connections for purposes of his im p e n d in g trial. S ta n fo r d I, 341 F. App'x at 983-84. Stanford has also not demonstrated a change in circumstances warranting reconsideration of those findings in the past, in s t e a d refashioning previously known information as new facts. See Stanford I I , 367 F. App'x at 510-11. We agree with the district court that the factors that s o firmly supported the initial denial of pretrial bail also firmly support S t a n fo r d 's continued detention. The district court undertook a thorough and accurate analysis of the a d d it io n a l factors we articulated in Hare. To date, Stanford's detention has la s t e d just over twelve months and his trial will begin in January 2011. Even a s s u m in g that his trial will last six months, as Stanford speculates, he has p o in te d to no court decision declaring that the length of such a detention violates t h e Fifth Amendment; indeed, courts have routinely upheld longer pred e t e n t io n s in the face of constitutional attacks. See, e.g., United States v. ElH a g e , 213 F.3d 74, 77-79 (2d Cir. 2000) (considering a thirty- to thirty-threem o n th pretrial detention); United States v. Milan, 4 F.3d 1038, 1044 (2d Cir. 4 Case: 10-20466 Document: 00511220435 Page: 5 Date Filed: 08/31/2010 No. 10-20466 1 9 9 3 ) (considering a thirty-month pretrial detention). Moreover, the length of S t a n fo r d 's pretrial detention is not speculative, nor is it indefinite. The district c o u r t is committed to beginning his trial in January 2011 and, in any event, S t a n fo r d 's detention is necessarily limited by the mandates of the Speedy Trial A c t . See Salerno, 481 U.S. at 747 (explaining that the "maximum length of p r e t r ia l detention is limited by the stringent time limitations of the Speedy Trial A c t " ). As to the third additional factor, Stanford concedes that "there is no q u e s t io n that this case is one of extraordinary complexity, involving both an e n o r m o u s volume of discovery documents and a staggering number of t r a n s a c t io n s ." Finally, our review of the record in this case supports the district c o u r t's determination that much of the delay in Stanford's trial is attributable t o his own tactical and strategic choices, including countless changes to his c h o ic e of trial counsel. It does not appear that any delay in beginning the trial o f this matter (and we do not mean to imply that a trial beginning eighteen m o n th s from indictment in a case as complex as this must be the product of " d e la y " ) is attributable to the Government. Accordingly, each of the Hare factors leads to the conclusion that S t a n fo r d 's continued pretrial detention serves only regulatory goals and has not c r o s s e d the due process boundary of impermissible punishment. Stanford argues the district court "mistook the nature of [his] Sixth A m e n d m e n t argument" by "treating it as a free-standing due process argument r a t h e r than as a factor that should be weighed" as part of Hare's Fifth A m e n d m e n t analysis. Our review of the record reveals that Stanford in fact p r e s e n t e d a free-standing Sixth Amendment claim to the district court2 ; because See Defendant's Opposed Motion for Release from Detention (District Court Docket No. 225, filed May 19, 2010), at 2 ("Mr. Stanford's continued detention will also . . . deprive him of his Sixth Amendment right to effective assistance of counsel."); id. at 8 ("A critical element of [the pretrial detention] punishment -- and also an independent reason why Mr. Stanford must be released from detention -- lies in the ongoing deprivation of his fundamental 2 5 Case: 10-20466 Document: 00511220435 Page: 6 Date Filed: 08/31/2010 No. 10-20466 S ta n fo r d does not object to the district court's treatment of his independent Sixth A m e n d m e n t claim, we now deem it waived. See Miller v. Texas Tech Univ. H e a lth Science Ctr., 421 F.3d 342, 348-49 & n.17 (5th Cir. 2005) (en banc). T o the extent that Hare may allow consideration of how pretrial detention a ffe c t s the defendant's ability to participate in his own defense, Stanford has not s h o w n that this factor would call for his release, particularly in light of the other fa cto r s supporting his continued detention. And, as the district court found, both in addressing this motion and in connection with Stanford's various other c h a lle n g e s to his pretrial detention,3 the reasonable restrictions imposed by the c ir c u m s t a n c e s of his custody do not "impede his ability to prepare for trial or p e r s o n a lly assist his counsel in such preparation." There was more than a d e q u a t e evidence to support the district court's findings. Moreover, Stanford h a s not shown an absence of evidence supporting the district court's findings of h is t o r ic a l fact, nor has he pointed to evidence calling for the contrary conclusion. See Guerra v. Johnson, 90 F.3d 1075, 1078 (5th Cir. 1996) ("[A] factual finding is clearly erroneous `when although there is evidence to support it, the reviewing c o u r t on the entire evidence is left with the definite and firm conviction that a m is t a k e has been committed.'" (quoting Anderson v. City of Bessemer City, 470 U .S . 564, 573 (1983)). We therefore find Stanford's argument that his pretrial d e t e n t io n is impermissibly punitive because of the reasonable limitations placed o n his ability to participate in his defense to be unpersuasive. For the foregoing reasons, we affirm the district court's July 7, 2010 order d e n y in g Stanford's motion for release from pretrial detention. Sixth Amendment right to assist in the preparation of his defenses and to have the effective assistance of counsel in his defense." (emphasis added)). See Stanford II, 367 F. App'x at 511 n.4 ("The district court considered, on several occasions, Stanford's argument that custody made it difficult for him to prepare an effective defense."). 3 6 Case: 10-20466 Document: 00511220435 Page: 7 Date Filed: 08/31/2010 No. 10-20466 A F F IR M E D . 7

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