United States v. Wright

649 F.Supp.3d 1333

UNITED STATES of America, v. Barry WRIGHT, Defendant.

CASE NO.: 4:19-cr-149

United States District Court, S.D. Georgia, Savannah Division

Signed December 9, 2022

James Christian Stuchell, Tania D. Groover, Bobby L. Christine, Karl Irving Knoche, Joseph McCool, David H. Estes, U.S. Attorney's Office, Savannah, GA, for United States of America.

Alex L. Zipperer, III, Zipperer, Lorberbaum & Beauvais, Savannah, GA, Thomas A. Withers, Gillen Withers & Lake, LLC, Savannah, GA, for Defendant.

ORDER

R. STAN BAKER, UNITED STATES DISTRICT JUDGE

Before the Court is the Magistrate Judge's October 14, 2022 Report and Recommendation ("R & R"), (doc. 148), to which the Government has filed objections, (doc. 154). The Magistrate Judge recommended that the Court grant Wright's Motion for Release on Due Process Grounds (the "Release Motion"), (doc. 124). (Doc. 148.) For the following reasons and after a careful de novo review of the entire record,¹ the Government's objections are OVERRULED, (doc. 154), and the Court ADOPTS the R & R, in part, and DECLINES to ADOPT the R & R, in part. (Doc. 148.)

BACKGROUND

As discussed in the Court's prior Order, Wright's ex-wife's vehicle "suddenly exploded" while she was driving. (Doc. 111, pp. 2.) Investigators subsequently found an incendiary device under the driver's seat consisting of circuit boards, switches, wires, batteries, plastic bottles, accelerant, and cardboard cylinders which tested positive for chemicals commonly found in boat flares. (Id.) As the Magistrate Judge explained, Wright was arrested on state charges in connection with the explosion on July 10, 2019, and transferred to federal custody on August 28, 2019. (Doc. 148, p. 1.) The Court granted the Government's motion for detention at Wright's detention hearing, finding that it carried its burden of showing that "no condition or combination of conditions of release [would] reasonably assure [Wright's]" appearance as required. (Id., p. 2 (quoting 4:19-mj-00062, doc. 81 at 62-63).)

The Magistrate Judge held a hearing on Wright's Release Motion, (doc. 146 (Minute Entry)); at the time of the hearing, Wright's pretrial detention period was approximately 36 months. (See doc. 148, p. 2.) The Magistrate Judge recommended that Wright's motion be granted, finding that the applicable factors balanced in favor of release. (See, e.g., doc. 148, p. 16.) The Government objects, arguing that the Magistrate Judge erred by (1) attributing 4.5 months of the delay in this case to the Government's litigation strategy regarding Wright's Motion to Suppress Evidence seized from his residence located on 66th St. in Savannah, Georgia,² (doc. 28), and (2) recommending release despite finding that a majority of the due process factors weigh against release. (Doc. 154, pp. 3, 7.)

ANALYSIS

The Fifth Amendment provides that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law[.]" U.S. Const. amend. V. As the Magistrate Judge explained, although " 'due process places no bright-line limit on the length of pretrial detention,' " United States v. Oury, 452 F. Supp. 3d 1364, 1370 (S.D. Ga. 2020) (quoting United States v. Briggs, 697 F.3d 98, 101 (2d Cir. 2012)), "at some point and under some circumstances, the duration of pretrial detention becomes unconstitutional." United States v. Gonzales Claudio, 806 F.2d 334, 339 (2d Cir. 1986). (See doc. 148, pp. 2-3.)

This Court has adopted the Second Circuit's four-part test to evaluate whether and when pretrial detention becomes unconstitutionally prolonged. Oury, 452 F. Supp. 3d at 1369-70. Using that test, "[t]o determine whether the length of pretrial detention has become unconstitutionally excessive, a court must weigh: (1) its length, (2) the extent of the prosecution's responsibility for delay of the trial, (3) the gravity of the charges, and (4) the strength of the evidence upon which detention was based, i.e., the evidence of risk of flight and dangerousness." Id. at 1370 (quotations omitted) (citing United States v. El-Hage, 213 F.3d 74, 79 (2d Cir. 2000)). "[S]ome courts have added, as an additional factor, a comparison between the length of the likely sentence the defendant faces and the length of pretrial detention." United States v. Cos, 2006 WL 4061168, at *3 (D.N.M. Nov. 15, 2006). Where, as here, the length of pretrial detention exceeds two years, "courts have typically upheld detention only if the government was not responsible for any significant portion of the delay and special circumstances indicated that the defendant's release would pose an extraordinary threat to the government's regulatory interests in detention." Id. at *7.

I. The Magistrate Judge did not err by finding that the second factor weighs against continued detention.

The Magistrate Judge attributed 12.5 months of delay to the Government under the second factor. (See doc. 148, p. 10.) He calculated the delay by adding the 8 months of delay for which the Government concedes it is responsible, (see, e.g., doc. 133, p. 12), and 4.5 months of delay attributable to the Government's "litigation strategy" regarding Wright's 66th St. Motion, (doc. 28). (Doc. 148, pp. 8, 10.) The R & R summarizes the litigation strategy as follows:

After a July 7, 2021 evidentiary hearing, . . . the [Magistrate Judge] recommended that the District Judge grant the [66th St. Motion.] . . . In its . . . objections to the R & R, the Government raised a new argument against suppression . . . . The District Judge remanded consideration of the motion to afford the [Magistrate Judge] an opportunity to consider the new argument. . . . After the parties filed briefs regarding the argument . . . the [Magistrate Judge] held a status conference. . . . At the conference, the Government moved to reopen the evidentiary hearing . . . .

The [Magistrate Judge] afforded the Government an opportunity to present additional testimony on a provisional basis to allow [him] to assess the content and credibility of the additional witnesses' testimony before entering a recommendation on whether the [Court] should consider it. . . . [He] held the provisional evidentiary hearing[, and the] 66th St. [Motion] remains pending. The [Magistrate Judge] must still make a recommendation on whether the [Court] should consider the additional testimony offered at the hearing, and recommend a disposition. The parties will have 14 days to object to the [Magistrate Judge's] recommendations, . . . and the [Court] will enter a final disposition on the motion. Assuming the delay attributable to the Government's newly-raised argument began running on the date of its objection, April 29, 2022, doc. 107, the delay associated with [its] failure to raise its argument is over 4.5 months, and counting.

(Doc. 148, pp. 8-10 (citations omitted).)

The Government asserts that its litigation strategy is not "the type of intentionally dilatory conduct required to trigger government responsibility for delay." (Doc. 154, p. 8.) The Court agrees that there is no indication that the Government intended to delay this case by asserting its new suppression argument. Courts, however, have rejected the Government's position that the second factor requires dilatory Government conduct intended to cause delay. See, e.g., United States v. Hofstetter, 2017 WL 4079181, at *7 (E.D. Tenn. Sept. 14, 2017) ("The Court respectfully disagrees that it must find that the delay was unnecessary or that the Government was dilatory in order to attribute delay to the Government."). "Rather, it is sufficient to determine whether 'even if not deserving of blame or fault, the Government bears a responsibility for a [significant] portion of the delay.' " Rush, 2017 WL 6541436, at *5 (quoting Gonzales Claudio, 806 F.2d at 342-43). Although "Governmental delays motivated by bad faith, harassment, or attempts to seek a tactical advantage" weigh more heavily against the Government than "neutral reasons such as negligence", United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006), quoted in United States v. Davis, 2020 WL 8614599, at *9 (E.D. Tenn. Dec. 17, 2020), courts have reiterated that "delay caused even by neutral reasons, such as strategic case management choices that foreseeably extend the case, may be attributable to the [G]overnment." Rush, 2017 WL 6541436, at *5; see also Hofstetter, 2017 WL 4079181, at *7 (recognizing that the Supreme Court, in analyzing potential Sixth Amendment violations, has attributed negligent or even neutral reasons for delaying trial to the Government). In evaluating the second factor, courts also consider whether delay is attributable to the defendant, United States v. Taylor, 602 F. App'x 713, 717 (10th Cir. 2015) (denying motion for release on due process grounds when "most of the delay in proceeding to trial is attributable to [Defendant]"),³ or the "court system", United States v. Ailemen, 165 F.R.D. 571, 581 (N.D. Cal. 1996).

The Magistrate Judge did not err by concluding that the second factor weighs in favor of release. (Doc. 148, p. 10-11.) This is not a case where "fingers point to all quarters, so to speak" regarding the delay attribution, United States v. Babichenko, 2019 WL 3558484, at *9 (D. Idaho Aug. 5, 2019). The Government does not explicitly argue that Wright is responsible for any delay.⁴ In contrast, it concedes it is responsible for some delay, but contends that its opposition to the 66th St. Motion was "vigorous litigation," and not additional delay. (Doc. 154, pp. 7, 10.) However, its failure to raise its new argument until it objected to the Magistrate Judge's R & R was a "strategic case management choice[ ] that foreseeably extend[ed] the case . . . ." Rush, 2017 WL 6541436, at *5. The Government initially submitted a single omnibus response to nine of Wright's suppression motions, briefly arguing that the Court should deny all nine motions pursuant to the Leon exception because officers obtained warrants for their searches:

In

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