UNITED STATES v. NERO (2021)

United States Court of Appeals, Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Harold Lashawn NERO, Defendant-Appellant.

No. 20-2275

Decided: April 20, 2021

Before: GILMAN, STRANCH, and NALBANDIAN, Circuit Judges. Jerome Francis Gorgon, Jr., United States Attorney's Office, Detroit, MI, for Plaintiff-Appellee Mark Henry Magidson, Law Office, Detroit, MI, for Defendant-Appellant

ORDER

Defendant Harold Lashawn Nero appeals from the district court's order denying his motion to revoke its previous detention order. He argues that his ongoing detention since June 2017 is so long as to violate due process and that the district court erred when it concluded that there were no compelling reasons to release him. The government opposes reversal, and Nero replies. The facts and legal arguments are adequately presented on the briefs; thus, the panel unanimously agrees that oral argument is not necessary. Fed. R. App. P. 34(a)(2)(C).

Pretrial release is governed by 18 U.S.C. § 3142, which holds that a person charged with an offense should be released before trial so long as the court can be reasonably assured that the person will appear at their next court date and will not pose a danger to others. If, however, after a hearing, “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, such judicial officer shall order the detention of the person before trial.” 18 U.S.C. § 3142(e)(1).

The judicial officer must consider four factors in making a detention finding: (1) “the nature and circumstances of the offense charged”; (2) “the weight of the evidence against the person”; (3) “the history and characteristics of the person, including ․ the person's ․ past conduct, ․ criminal history, and record concerning appearance at court proceedings”; and (4) “the nature and seriousness of the danger to any person or the community that would be posed by the person's release.” 18 U.S.C. § 3142(g). We “review the district court's factual findings for clear error, but we consider mixed questions of law and fact—including the ultimate question whether detention is warranted—de novo.” United States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010).

A lengthy pretrial detention can violate the Due Process Clause of the Fifth Amendment when it lasts long enough to become punitive. United States v. Watson, 475 F. App'x 598, 601 (6th Cir. 2012) (citing Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). There are “four factors to be considered in determining if the pretrial detention is unconstitutionally excessive,” two of which are part of the initial detention decision—“the gravity of the charges ․ and the strength of the evidence upon which the detention was based.” Id. The court must also consider “the length of the detention” and “the prosecution's responsibility for the delay of the trial.” Id.

Nero's initial detention was justified by the balance of relevant factors, which still holds true today. First, he is charged with multiple serious offenses. Indeed, his charges carry a rebuttable presumption of detention. 18 U.S.C. § 3142(e)(3)(A), (E). And the government proffered significant evidence that underlines the serious and dangerous nature of those crimes, including first-hand accounts corroborated by confidential informants, police surveillance, and recordings of Nero participating in drug activity on the Victory Inn's own closed-circuit video. Nero asserts that “[t]he district court made the mistake of considering the Indictment itself as evidence,” and argues that “[i]t is not a crime to walk past an overdosing victim, and [that] most of the video evidence the district court refers to is not of Nero.” He attempts to minimize his role in the conspiracy by admitting “to being a drug user who was merely present during the alleged activity at the Victory Inn.”

However, courts are tasked with assessing “the nature and circumstances of the offense charged,” 18 U.S.C. § 3142(g), and the evidence indicates that Nero was involved in several serious crimes at the Victory Inn. Nero is correct that not every heartless act is criminal, but participating in a months-long drug- and sex-trafficking conspiracy involving dozens of victims and leading to multiple deaths is. Even if the government's evidence is more damning of his co-defendants, there is enough to conclude that the first and second factors weigh against his release, especially given the presumption of detention.

Nero's history and characteristics also weigh heavily against release. He asserts in his appellate brief that he can be sufficiently monitored to ensure that he is not a danger or flight risk. That assertion carries very little weight alongside Nero's past conduct; “[h]e has violated probation eight times and committed crimes at least six times while on supervision,” and he was on probation during the conduct alleged in the indictment. On top of his long history of violating the conditions of his release, it took the Detroit Fugitive Apprehension Team nearly three months to apprehend Nero in this case; he had been hiding since the indictment, with the help of his family and friends. When police captured him, he was walking between houses and wearing a hooded sweatshirt and sunglasses to avoid detection. It strains credulity to suggest that he would abide by any condition the district court might impose on his release to prevent him from being a danger to the public or absconding.

Having determined that Nero's initial detention was warranted, we must next determine whether his detention has gone on so long as to violate due process. It is indisputable that Nero has been in custody for a long time, but “[t]he length of pretrial detention is not dispositive, and will, by itself, rarely offend due process.” Watson, 475 F. App'x at 601 (citing United States v. El–Hage, 213 F.3d 74, 79 (2d Cir. 2000) (per curiam)).

In cases involving long pretrial detentions, the government's part in the delay is often decisive. In this case, the government bears little blame. The parties agreed early on to a discovery schedule that contemplated future extensions as necessary to review the thousands of hours of surveillance footage. Although the government produced multiple supplements to its list of relevant footage, Nero agreed to a final production date, even after he filed his first motion for revocation of detention. That process alone took nearly two years. The district court found that the government was diligent in its production of discovery and met the stipulated deadlines. Thereafter, Nero and his co-defendants decided that a full review of all 14,000+ hours of footage was necessary to identify any exculpatory footage. Discovery continued in earnest for months—including numerous discovery motions filed by Nero and other defendants—until early 2020, when the coronavirus reached America and the case ground to a halt. The district court noted in its opinion and order denying Nero's most recent motion for release that jury trials have been on hold since March 2020 due to the COVID-19 pandemic.

Nero argues that the government bears the responsibility of indicting him before it had fully reviewed the seized footage. But defendants—not the government—asserted the need to review all of the footage before proceeding to trial; as the district court found, proceeding to trial without allowing defense counsel to do so would itself have been a miscarriage of justice.

This case is different from United States v. Gonzales Claudio, 806 F.2d 334 (2d Cir. 1986), which Nero cites in support, where the government collected a full two-years’ worth of wiretap recordings but failed to begin producing translations of the Spanish-language calls until months after the defendants were arrested, waited ten months after the arrests to notify the defendants that it had videotape evidence, did not produce translated copies of seized documents until a year after the arrests, and refused defendants’ request for a transfer to Puerto Rico, which would have eliminated the need for translations entirely. Id. at 342.

Nero also argues that it is the government's responsibility to take whatever steps necessary to ensure a safe and timely trial and that it bears the blame for its ongoing refusal to invest the money and effort to do so. However, when a delay is attributable to the COVID-19 pandemic, courts have concluded that the delay is beyond the government's control. See United States v. Zhukov, No. 18-CR-633, 2020 WL 6302298, at *3 (E.D.N.Y. Oct. 27, 2020) (“[T]he delay in bringing this case to trial is overwhelmingly attributable to one factor—the COVID-19 epidemic—that is surely beyond the prosecution's control.”); United States v. Crittenden, No. 4:20-CR-7, 2020 WL 5223303, at *3 (M.D. Ga. Sept. 1, 2020) (“Certainly, a global pandemic that is beyond the control of all the parties involved justifies an appropriate delay.”).

Nero cites United States v. Nagi, No. 09-1995 (6th Cir. Dec. 14, 2009), and United States v. Briggs, 697 F.3d 98 (2d Cir. 2012), but neither supports his appeal. In Nagi, “[t]he government [bore] some responsibility for the more than two-year delay between Nagi's arrest and the superseding indictment.” No. 09-1995 at 4. No such delay is present in this case. In Briggs, ongoing detention was approved where the case was “slowed by repeated motions and abundant discovery,” leading the Second Circuit to reference an earlier case in which “the defendant's long detention was justified in part by ‘the inherent complexities of this large multi-defendant case, which presents defense counsel with voluminous discovery to absorb and the court with myriad motions to address.’ ” 697 F.3d at 102 (quoting United States v. Hill, 462 F. App'x 125, 127 (2d Cir. 2012) (summary order)). Like in Briggs, progress in this case was slowed by repeated motions and abundant discovery. See id.

Ultimately, the balance of relevant factors supports Nero's continued detention. The duration of his pretrial confinement is significant. But so too are the charges against him, the government's evidence, and the burden of preparing for a complex multi-defendant trial. Crucially, the delay is not the government's fault; the early portion is attributable to stipulated extensions and the more recent postponements are due to a global pandemic.

Nero alternatively argues that his continued detention interferes with his ability to prepare for trial and that his increased risk of severe COVID-19 symptoms is a compelling reason for temporary pretrial release. Under 18 U.S.C. § 3142(i)(4), a court may “permit the temporary release of the person ․ to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason.” “We review the denial of release under § 3142(i) for an abuse of discretion.” United States v. Bothra, 838 Fed.Appx. 184, 185 (6th Cir. 2021). “Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Amernational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991) (quoting Davis v. Jellico Cmty. Hosp. Inc., 912 F.2d 129, 132–33 (6th Cir. 1990)).

The district court's rejection of Nero's arguments below was not an abuse of discretion. The district court found that, although he could not meet with his attorney in person due to the jail's COVID-19 protocols, there was no allegation that they had been unable to communicate or that, given the pandemic, they would have been able to meet in person if Nero were not incarcerated. Likewise, the number and breadth of motions filed on Nero's behalf indicated that the attorney-client relationship was functioning well. As to Nero's medical risks, the district court noted that “medical records indicate[d] that Nero has received treatment through a doctor's care, a referral to a surgeon, and hospitalizations, as necessary,” demonstrating that the jail was capable of managing the demands of Nero's medical conditions. In light of that record evidence, the district court's decision was reasonable and does not indicate a clear error of judgment. See Amernational, 925 F.2d at 975.

Accordingly, the district court's detention order is AFFIRMED.