20-1562
United States v. Bryant

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of September, two thousand twenty.
Present:
                   JOHN M. WALKER, JR.,
                   ROBERT A. KATZMANN,
                   RAYMOND J. LOHIER, JR.,
                        Circuit Judges.


United States of America,

                          Appellee,

                   v.                                               No. 20-1562

Wilbert Bryant, AKA Will, AKA La,


                          Defendant-Appellant,

                          v.

Ppassim Elder, AKA Sam, AKA Big Sam,
Mahdi Abdel-Rahim, Dwayne Ling, Frederick
McCoy, Abdelkareem Abu Zahrieh, AKA
Abdu, Mohammed Rabah,

                          Defendants. 1


For Defendant-Appellant:                         MICHAEL HUESTON, Esq., Brooklyn, NY.




1
         The Clerk of Court is directed to amend the caption to conform to the above.
For Appellee:                                 ANDREY SPEKTOR, Assistant United States
                                              Attorney (Amy Busa, Keith D. Edelman,
                                              Genny Ngai, Assistant United States
                                              Attorneys, on the brief), for Richard P.
                                              Donoghue, United States Attorney for the
                                              Eastern District of New York, Brooklyn, NY.

       Appeal from an order of the United States District Court for the Eastern District of New

York (Kuntz, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Defendant-appellant Wilbert Bryant appeals from an order of the district court entered

April 30, 2020 denying his motion for release on bond or, in the alternative, temporary pretrial

release pursuant to 18 U.S.C. § 3142(i). We assume the parties’ familiarity with the factual and

procedural background of this case and the issues on appeal.

       Bryant was arrested, arraigned, and ordered detained on January 4, 2019 pursuant to a

third superseding indictment charging him with extortion, use and possession of a firearm, and

causing death through use of a firearm. On March 12, 2020, the grand jury returned a fifth

superseding indictment charging Bryant with (1) conspiracy to commit bank fraud, in violation

of 18 U.S.C. § 1349; (2) extortion conspiracy, in violation of 18 U.S.C. § 1951(a);

(3) committing physical violence in furtherance of an extortion, in violation of 18 U.S.C.

§ 1951(a); (4) unlawful use and possession of firearms, in violation of 18 U.S.C.

§§ 924(c)(1)(A)(i)–(iii); and (5) causing death through use of a firearm, in violation of 18 U.S.C.

§ 924(j)(1).

       Shortly thereafter, the COVID-19 pandemic began to disrupt court proceedings

throughout the Nation and especially in New York City, where Bryant has been detained at the

Metropolitan Detention Center while awaiting trial in the Eastern District of New York. On the

joint motion of the parties, the district court entered an order on April 14, 2020 adjourning trial

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until December 1, 2020. On April 22, 2020, Bryant filed a motion seeking release on bond or, in

the alternative, for temporary pretrial release pursuant to 18 U.S.C. § 3142(i). The district court

denied the motion on April 30, 2020, after weighing the relevant factors and determining that

Bryant had failed to rebut the presumption that there was no set of conditions sufficient to

reasonably assure Bryant’s appearance and the safety of the community. Bryant filed a timely

notice of appeal on May 14, 2020.

       The parties agree that, because Bryant was indicted for an offense under 18 U.S.C.

§ 924(c), he was subject to a rebuttable presumption that “no condition or combination of

conditions” would “reasonably assure [his] appearance . . . as required and the safety of the

community,” 18 U.S.C. § 3142(e)(3), and that the district court was required to deny his motion

for release on bond unless Bryant successfully rebutted that presumption, see 18 U.S.C.

§ 3142(e)(1). In determining whether the presumption has been rebutted, a district court must

consider (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,” 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 a district court’s bail determination for clear error. See United States v. Mattis,

, 291 (2d Cir. 2020). This “clear error standard applies not only to the factual

predicates underlying the district court’s decision, but also to its overall assessment, based on

those predicate facts, as to the risk of flight or danger presented by defendant’s release. That is,

the determination that a package of bail conditions will protect the public from a purportedly

dangerous defendant is a mixed question of law and fact which we review for clear error. We




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will find clear error only where, on the entire evidence, we are left with the definite and firm

conviction that a mistake has been committed.”

       We find no clear error either in the district court’s predicate factual findings or in its

overall assessments that Bryant failed to rebut the 18 U.S.C. § 3142(e)(3) presumption and that

Bryant posed a flight risk and a danger to the community. Bryant argues, however, that the

district court erred by failing to consider the government’s consent to the release of Bryant’s co-

defendant Frederick McCoy. According to Bryant, the government’s consent to the release of an

allegedly similarly situated defendant illustrates that there is a set of conditions that would

reasonably assure Bryant’s appearance and the safety of the community.

       Although Bryant does not cite any authority requiring a district court to consider the

treatment of “comparator” defendants, we have recognized that, in some circumstances, district

courts must consider the treatment of other similarly-situated or “comparator” defendants in

order to avoid arbitrary or unlawful distinctions in the bail system. See United States v. Boustani,

, 82 (2d Cir. 2019). We therefore acknowledge the force of Bryant’s argument that if

a set of bail conditions were sufficient to rebut the presumption against release in a similarly-

situated co-defendant’s case, it should have been sufficient in his own.

       Nevertheless, in the particular circumstances of this appeal, we conclude that Bryant’s

argument fails. Bryant argues that the applicable factors in his case are “nearly identical” to those

in McCoy’s case, Reply Br. 4, but the similarities that Bryant pointed to in the district court were

limited to an overlap in certain charges and offense conduct. In rejecting Bryant’s bail motion,

however, the district court relied on additional factors specific to Bryant’s case: the

circumstances of his January 4 arrest where he “resisted arrest, barricaded himself in his

apartment, and attempted to stab one of the [arresting] officers with a knife,” which the district

2
      Unless otherwise indicated, in quoting cases, we omit all citations, alterations, footnotes,
emphases, and internal quotation marks.
                                              4
court characterized as “demonstrat[ing] his propensity for violence.” Appellant’s Br. Ex. 2

(“Order”), at 6–7. The district court then concluded that this incident, together with Bryant’s

“violent criminal history” and “alleged involvement in the instant offense,” shows that he “would

pose a serious threat to the safety of the community upon release.”

We identify no clear

error in these findings concerning Bryant’s individual conduct. Accordingly, we cannot conclude

that the district court erred in failing to address Bryant’s argument that the conditions of release

deemed sufficient in McCoy’s case should have been deemed sufficient in Bryant’s case as well.

       Finally, Bryant argues that the district court erred in declining to order his temporary

pretrial release pursuant to 18 U.S.C. § 3142(i). That provision authorizes a district court to

“permit the temporary release of the person, in the custody of a United States marshal or another

appropriate 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.” 18 U.S.C. § 3142(i).

The district court determined that, notwithstanding the COVID-19 pandemic, Bryant did not

present a sufficiently compelling reason for his temporary release or demonstrate that his release

was necessary for the preparation of his defense.

       We find no abuse of discretion in the district court’s determination that Bryant’s

proffered reasons for temporary release were not sufficiently “compelling” in light of the

countervailing factors that led the district court to deny his motion for release on bond. 3 Nor do

we find any abuse of discretion in the district court’s conclusion that temporary pretrial release

was not necessary for the preparation of Bryant’s defense, given that, at the time of the district

3
         Although this Court does not appear to have addressed the standard of review on appeal
from an order granting or denying temporary pretrial release under 18 U.S.C. § 3142(i), at least
two of our sister circuits have reviewed such orders for abuse of discretion. See United States v.
Scarborough, No. 20-1427, 

, at *1 (6th Cir. Aug. 5, 2020); United States v.
Hoover, No. 20-10139, 

, at *1 (9th Cir. May 22, 2020). Because we would
affirm even under the more lenient abuse-of-discretion standard, we need not address the
government’s apparent assumption that clear-error review should apply to this aspect of the
district court’s order.
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court’s order, trial was still approximately eight months away. In reaching that conclusion, the

district court relied on an earlier opinion of the Southern District of New York, which noted that

district courts had found pretrial release “necessary” for the preparation of a defense where trial

was scheduled as soon as two months later, but that a five-month delay left enough time for the

defendant to prepare his defense with counsel under the circumstances. See United States v.

Gonzalez, No. 19-CR-906 (JMF), 

, at *1 (S.D.N.Y. Apr. 20, 2020).

       We recognize that the district courts have confronted this and similar issues against the

backdrop of an ongoing and evolving set of circumstances, and that the realities of the present

moment may not match the expectations of the early days of the pandemic when the district court

rejected Bryant’s motion. The district court’s determination that the amount of time between its

order and Bryant’s trial date allowed sufficient time for Bryant to prepare his defense necessarily

relied on a prediction about the future—namely, a prediction about the degree of communication

between Bryant and his counsel that would be possible over the ensuing months. Therefore,

while we conclude that the district court acted within its discretion when it determined that

pretrial release was not necessary for preparation of Bryant’s defense at that time, we recognize

that intervening circumstances may have undermined—or indeed, confirmed—the basis for that

determination. Of course, the district court is capable of resolving any further disputes on that

score as Bryant’s trial date approaches.

       We have considered all of Bryant’s arguments and found in them no basis for reversal.

For the reasons set forth above, the order of the district court is AFFIRMED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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