United States v. Cos ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 4, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-2244
(D.C. No. CR-05-1619 JB)
JOSE A NTO NIO CO S, (D . N.M .)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, BR ISC OE, and O’BRIEN, Circuit Judges.
Jose Antonio Cos appeals the district court’s order of continued detention
pending appeal by the government of the court’s order granting defendant’s
motion to suppress. W e have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3145(c). W e affirm the district court’s decision to detain M r. Cos pending
*
This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeal. W e remand on the limited question of w hether the length of M r. Cos’
pretrial detention implicates due process concerns.
I
The federal charges in this case arose out of an arrest warrant for M r. Cos
that the Albuquerque Police Department was executing at his residence. The
warrant was based on charges for domestic violence, kidnaping and aggravated
assault with intent to commit a violent felony on a household member. W hen the
officers arrived at M r. Cos’ apartment to execute the w arrant, one of M r. Cos’
former girlfriends, Feather Ricker, opened the door. She did not live in the
apartment or have a key to the apartment. She was at the apartment with her three
children to use the apartment pool. She told the officers that M r. Cos was not at
home and they asked if they could look for M r. Cos in the apartment. M s. Ricker
indicated that they could do so.
During the course of their search for M r. Cos, the officers found a loaded
handgun under a bed. The officers learned that M r. Cos had prior felony
convictions and thus did not have the right to possess the firearm. The officers
arrested M r. Cos when he arrived at the apartment.
A complaint was filed in the United States District Court for the District of
New M exico charging M r. Cos w ith being a felon in possession of a firearm in
violation of 18 U .S.C. § 922(g)(1). The government moved for M r. Cos’
detention pending trial on the grounds that he was a flight risk and a danger to the
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comm unity. The magistrate judge agreed with the government and ordered
M r. Cos detained pending trial. M r. Cos has been detained since June 29, 2005.
Trial was originally scheduled for September 12, 2005. M r. Cos moved for
a continuance and it was granted. M r. Cos then filed a motion to suppress the
fruits of the officers’ entry into and search of his apartment, including the
handgun that is the subject of the indictment. A hearing was held on the motion
in November 2005. On April 25, 2006, the district court granted M r. Cos’ motion
to suppress the evidence. The next day, M r. Cos filed a motion for
reconsideration of his detention order. That motion was denied on M ay 5.
The government filed a motion for reconsideration and a supplemental
motion for reconsideration of the district court’s suppression order. Those
motions were denied on M ay 17. The government then filed another motion for
reconsideration, which was denied on June 9. Finally, the government filed an
appeal of the district court’s decision on June 29. That appeal is currently
pending before this court.
On July 25, 2006, M r. Cos filed a motion in the district court for release
pending appeal. The district court denied the motion and this appeal followed.
II
A motion seeking release pending an appeal by the government is
controlled by 18 U.S.C. § 3143, which provides that a court should treat a
defendant in this situation according to § 3142. See § 3143(c). U nder § 3142, a
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defendant may be detained only if 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 the community.” Id. § 3142(e).
In making this determination, the court must consider the following factors:
(1) the nature and circumstances of the offense charged, including whether the
offense is a crime of violence or involves a narcotic drug; (2) the weight of the
evidence against the person; (3) the history and characteristics of the person; and
(4) the nature and seriousness of the danger to any person or the community that
would be posed by the person’s release. Id. § 3142(g)
W e review de novo mixed questions of law and fact concerning the
detention decision. United States v. Cisneros, 328 F.3d 610, 613 (10th Cir.
2003). W e review the district court’s findings of fact for clear error. Id.The District Court’s Decisions
In its decision denying the request for release pending the government’s
appeal of the suppression order, the district court concluded that M r. Cos
“remains a danger to the community and a flight risk for substantially the same
reasons that the Court set forth in its M ay 5, 2006 M emorandum Opinion and
Order.” A plt. App. at 147. The court went on to note that:
Cos’ two prior drug convictions, at least one of which involves
trafficking, also continue to concern the Court, especially in light of
Cos’ possession of a loaded firearm. The picture that the Court has
of Cos, given the evidence in the record, is that he engages in drug
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trafficking activities. Cos’ conduct reveals an individual who has
refused to reform his criminal ways.
Id. at 148.
In the M ay 2006 order addressing M r. Cos’ request to reconsider the
detention order after the district court’s suppression of the evidence, the district
court analyzed the § 3142 factors and made the follow ing findings:
The nature and circumstances of the offense charged remain
unchanged. W hile the weight of the evidence may have changed in
light of the Court’s suppression of the firearm, that factor should not
be given much w eight because the United States may appeal that
ruling. The gun is still available as possible evidence; the issue is
whether it is admissible. Further, Cos’ history and characteristics
raise a significant risk of non-appearance because of the lack of
information the Court has about his family, about what he is doing in
the community, about his employment, and about his financial ties.
R egarding his criminal history, he was a defendant in two
consolidated cases in state court and demonstrated poor performance
while on supervised release. According to Pretrial Services, he also
has a number of aliases. W hile there was some dispute at the hearing
whether Cos is in the country legally, he has an Immigration hold
against him. Finally, on the nature and seriousness of the danger
factor, his criminal history reflects prior offenses of a serious nature
and a record of probation violations.
Id. at 84. The court concluded its analysis with the following determination:
“W ith these factors in mind, the Court sees no conditions or combination of
conditions that will reasonably assure Cos’ appearance or alleviate the risk that
his release will pose to the community.” Id. at 85.
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III
M r. Cos asserts that the district court erred in three ways in determining
that he should be detained pending appeal. His first argument is that the district
court failed to accord proper weight to the extended length of time that M r. Cos
has spent in detention and failed to consider the due process implications of his
prolonged pretrial detention. W e will consider this argument last. The second
argument is that the district court did not accord proper weight to its suppression
order. The third argument is that the district court did not conduct a proper
evaluation of the § 3142 factors in making its detention decision.
The Suppression Order
M r. Cos argues that the district court should have treated its suppression
order with more significance. Under § 3142(g)(2), the district court must
consider the weight of the evidence against the person as a factor in the detention
determination. As the district court explained in its M ay 2006 order, although the
suppression order may have impacted this factor, the factor itself should not be
given much w eight because of the government’s appeal and the fact that the gun
is still available as possible evidence. The only issue is whether or not the gun
will be admissible at trial. In a detention hearing, the district court is permitted to
consider the evidence sought to be suppressed as if it w ere admissible. See
18 U.S.C. § 3142(f) (“The rules concerning the admissibility of evidence in
criminal trials do not apply to the presentation and consideration of information at
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the [detention] hearing.”). Consequently, the district court did not err in its
consideration of this factor. It was appropriate to downplay the significance of
the suppression order by noting that the gun is still available as possible evidence.
Evaluation of the § 3142(g) Factors
M r. Cos argues that the district court erred in its evaluation of the
§ 3142(g) factors. W ith respect to the first factor, in its M ay 2006 order, the
district court noted that regardless of the suppression order, “[t]he nature and the
circumstances of the offense charged remain unchanged.” Aplt. A pp. at 84.
Although we agree with M r. Cos that the felon-in-possession charge is not a
crime of violence for purposes of the Bail Reform Act, see United States v. Ingle,
454 F.3d 1082, 1084-86 (10th Cir. 2006), it does involve a loaded firearm and the
circumstances leading to the offense involved the execution of a state arrest
warrant with allegations of a violent nature. As the district court noted, “[t]his
case arises out of an arrest warrant for Kidnaping, Aggravated Assault, and
Aggravated Assault with a Deadly W eapon. The allegations are that, in an
apparent jealous rage, Cos attempted to stab his ex-girlfriend and a male
individual, and the two victims took cover inside a parked vehicle.” Aplt. App. at
147-48. During the state’s attempt to execute the arrest warrant, the officers
discovered the loaded firearm under the bed in M r. Cos’ apartment. W e therefore
agree that the circumstances leading to the felon-in-possession charge weigh in
favor of detaining M r. Cos pending the government’s appeal.
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W ith regard to the second factor, the weight of the evidence against the
person, we have already noted that for purposes of the detention hearing, “[t]he
rules concerning the admissibility of evidence in criminal trials do not apply to
the presentation and consideration of information at the [detention] hearing.”
18 U.S.C. § 3142(f). Because the discovery of the firearm is information that
may be considered at the detention hearing regardless of its admissibility as
evidence in the criminal trial, this factor also weighs in favor of detaining
M r. Cos pending appeal.
The third factor involves consideration of the history and characteristics of
the person, including:
(A ) the person’s character, physical and mental condition, family
ties, employment, financial resources, length of residence in the
community, community ties, past conduct, history relating to drug or
alcohol abuse, criminal history, and record concerning appearance at
court proceedings; and
(B) whether, at the time of the current offense or arrest, the person
was on probation, on parole, or on other release pending trial,
sentencing, appeal, or completion of sentence for an offense under
Federal, State, or local law.
Id. § 3142(g)(3). The district court concluded that M r. Cos’ history and
characteristics raise a significant risk of non-appearance. W e agree. As the
district court noted, there is very little information about M r. Cos’ family, about
what he is doing in the community, about his employment, and about his finances.
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M oreover, he has a prior state court conviction for drug trafficking and he
violated the terms of his parole for that violation on several occasions.
Finally, on the nature and seriousness of the danger factor, the district court
reiterated that M r. Cos’ criminal history reflects prior offenses of a serious nature
and a record of probation violations. The court stated:
Cos’ two prior drug convictions, at least one of which involves
trafficking, also continue to concern the Court, especially in light of
Cos’ possession of a loaded firearm. The picture that the Court has
of Cos, given the evidence in the record, is that he engages in drug
trafficking activities. Cos’ conduct reveals an individual who has
refused to reform his criminal ways.
Aplt. App. at 148. In addition to M r. Cos’ criminal history, the record reflects
that a scale–of the kind typically associated with drug trafficking–and $500 in
cash were found during the search of M r. Cos’ apartment after his arrest. Id. at
156-58. W e again agree with the district court that this factor weighs in favor of
detaining M r. Cos pending appeal. The district court did not err in its evaluation
of the § 3142(g) factors and its decision to detain M r. Cos pending appeal.
Length of Pretrial Detention
At the time of the hearing on the motion for release pending appeal,
M r. Cos had been detained for almost 14 months, since June 29, 2005. In his
motion, M r. Cos asserted that, in light of the length of his pretrial detention,
greater justification for his continued detention was required under the Due
Process Clause. M r. Cos contended that his sentence may be as short as
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27 months and he has now already served half of that time. M oreover, he argued
that “‘w hen the admissibility of all evidence against defendants is questionable, [
. . . ] prolonged pretrial detention must be subjected to more careful scrutiny than
might otherwise be required.’” Aplt. App. at 92 (quoting United States v.
Shareef, 907 F. Supp. 1481, 1485 (D. Kan. 1995)). The district court did not
address this due process argument in its order denying the motion for release
pending appeal. M r. Cos argues that this was error.
A district court is not required to consider the length of pretrial detention
when making its initial detention decision. Cf. 18 U.S.C. § 3142; United States v.
Accetturo, 783 F.2d 382, 388 (3d Cir. 1986) (declining to hold Bail Reform Act
unconstitutional for omitting the duration of pretrial incarceration from the
factors to be considered by the judicial officer in the detention determination).
The court in Accetturo went on to explain however, that:
W e agree with the Second Circuit that at some point due process may
require a release from pretrial detention or, at a minimum, a fresh
proceeding at which more is required of the government than is
mandated by section 3142. Thus, a determination under the Bail
Reform Act that detention is necessary is without prejudice to a
defendant petitioning for release at a subsequent time on due process
grounds.
Id.; see also Shareef, 907 F. Supp. at 1483-84 (reopening detention hearing to
examine the due process implications of the continued detention of defendants).
Because M r. Cos’ motion for release pending appeal was akin to a motion to
reopen his detention hearing, it was appropriate for M r. Cos to assert his due
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process argument. The district court should have ruled on that issue. On remand,
the district court should consider: 1) the length of detention; 2) the extent of the
prosecution’s responsibility for the delay of trial; and 3) the strength of the
evidence upon which the detention was based. See United States v. M illan, 4 F.3d
1038, 1043-1047 (2d Cir. 1993).
IV
Because the record supports the district court’s findings and there was no
legal error, we AFFIRM the decision of the district court denying release pending
appeal. W e REM AND for the district court to consider the due process
implications of the length of M r. Cos’ pretrial detention. The underlying appeal,
No. 06-2187, United States v. Cos, will be expedited. The case will be placed on
the next available docket and no extensions will be granted on the briefing
schedule.
ENTERED FOR THE COURT
PER CURIAM
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