United States v. English, No. 10-3258-cr (2d Cir. January 18, 2011) (Kearse, Winter, Hall, CJJ).
The defendants in this case, charged with narcotics and firearms offenses, sought bail from a magistrate and two district judges. Each time they were ordered detained. This opinion is the result of their effort to get the circuit to release them. The circuit affirmed.
The defendants were arrested in April of 2010. They faced a twenty-plus kilogram cocaine conspiracy charge and two firearms offenses. They first sought bail from a magistrate judge. At the hearing, the AUSA cited several factors indicating that the defendants were a danger, including characterizing a gun recovered from the defendants’ stash house as appearing to be a machine gun. The magistrate ordered the defendants detained finding that they had not overcome the presumption that they posed a danger to the community.
The defendants then appealed to the Part I judge, Judge McKenna. At that hearing, the AUSA confirmed that the gun was indeed a machine gun. Judge McKenna found that the defendants overcame the presumption of being a flight risk but, based on the government’s description of the gun, found that the defendants posed a danger. He ordered them detained. A few days later, the government sent the defendants a letter indicating that the gun was not a machine gun. It was a “pistol” that was “not operable.” Since the nature of the gun was the basis for the detention order, the defendants asked Judge McKenna to reconsider. In the interim, however, the defendants were indicted and their case was assigned to Judge McMahon. Judge McKenna referred the bail matter to her.
Before Judge McMahon, the AUSA described the case as involving 27 kilograms of cocaine, which prompted the judge to say that “in a 27-kilo case I don’t think I’ve ever let anybody out.” Nevertheless, the defendants persisted, and each had a bail hearing. Judge McMahon told them that she would not review Judge McKenna’s findings and that they were “starting over” with her. She also said that she was going to “ignore” the gun. For defendant Anderson she found both a risk of flight and a danger to the community, based on the nature of the charges, the penalty he faced and the weight of the evidence against him. She also detained defendant English, again finding him to pose both a risk of flight and a danger, citing essentially the same factors.
On appeal, the defendants complained that Judge McMahon erred in reviewing the case de novo and that she was improperly “predisposed” against them. The circuit affirmed.
It found first that Judge McMahon was not bound by Judge McKenna’s findings that the defendants did not pose a flight risk. A district judge considering bail should consider all of the statutory factors and make all of the findings required. Judge McMahon correctly concluded that she was not supposed to review Judge McKenna’s findings as an appellate court might. “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.”
The court also rejected the claim that Judge McMahon’s remark that she had never granted bail in a case like this demonstrated some sort of judicial bias. Reviewing the comment in the context of the “record as a whole,” the court found no bias. She granted each defendant a prompt hearing, agreed not to consider evidence of the gun, and carefully considered and responded to each argument for bail that the defendants proffered. She “simply concluded, as she was entitled to do,” that the bail packages the defendants proposed did not overcome the statutory presumption against them. “Her reasons were explicitly tied to the facts before the court and were fully explained on the record.”
Finally, the court, reviewing the merits, agreed that the defendants should be detained. Judge McMahon’s findings on flight risk and danger were “amply supported by the evidence” and the detention orders were “proper.”