Filed: Aug. 27, 2021
Latest Update: Aug. 27, 2021
21-483
USA v. Dunnigan
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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 27th day of August, two thousand twenty-one.
4
5 PRESENT:
6 REENA RAGGI,
7 GERARD E. LYNCH,
8 MICHAEL H. PARK,
9 Circuit Judges.
10 _____________________________________
11
12 HENRY LLOYD,
13
14 Defendant,
15
16 ROMAN DUNNIGAN,
17
18 Defendant-Appellant,
19
20 v. 21-483-cr
21
22 UNITED STATES OF AMERICA,
23
24 Appellee.
25 _____________________________________
26
27 FOR DEFENDANT-APPELLANT: Brian K. Parker, Buffalo, New York
28
29 FOR APPELLEE: Tiffany H. Lee and Katherine A. Gregory,
30 Assistant United States Attorneys, Western
31 District of New York
1 Appeal from an order of the United States District Court for the Western District of New
2 York (Arcara, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the February 18, 2021 order of the district court is AFFIRMED.
5 Defendant-Appellant Roman Dunnigan appeals from an order of the district court denying
6 his motion for release pending sentencing. 1 The district court’s order of detention pending
7 sentencing qualifies as a final appealable order. See 18 U.S.C. § 3145(c). The district court found
8 that Dunnigan failed to demonstrate a substantial likelihood that his post-trial motions to set aside
9 the jury’s verdict and for a new trial will be granted. See id. § 3143(a)(2). The district court also
10 found that other exceptional circumstances did not render Dunnigan’s detention inappropriate. See
11 id. § 3145(c). In an appeal from a bail determination, we review a district court’s legal conclusions
12 de novo and its factual findings underlying those legal conclusions for clear error. See United
13 States v. Abuhamra, 389 F.3d 309, 317 (2d Cir. 2004). We assume the parties’ familiarity with
14 the underlying facts, the procedural history of the case, and the issues on appeal.
15 A criminal defendant who has been convicted of “an offense for which a maximum term
16 of imprisonment of ten years or more is prescribed in the Controlled Substances Act” but not yet
17 sentenced must generally be detained unless (1) “the judicial officer finds there is a substantial
18 likelihood that a motion for acquittal or new trial will be granted . . . ” and (2) “the judicial officer
19 finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any
20 other person or the community.” 18 U.S.C. §§ 3142(f)(1)(C), 3143(a)(2). Even if detention is
21 appropriate under section 3143(a)(2), a criminal defendant “may be ordered released, under
22 appropriate conditions, by the judicial officer,” if “there are exceptional reasons why such person’s
1
Dunnigan appears to have mislabeled his brief as a “Memorandum in Support of Motion for
Release Pending Trial.” The substance of his filing, however, indicates he appeals the district
court’s denial of his motion for release pending sentencing. We thus construe Dunnigan’s filing
as an appeal of the district court’s denial of that motion.
2
1 detention would not be appropriate.” 18 U.S.C. § 3145(c). This statutory framework creates “a
2 presumption in favor of detention” that places a “plainly substantial” burden of proof on the
3 defendant seeking release. Abuhamra, 389 F.3d at 319.
4 The district court did not err by denying Dunnigan’s motion for release pending sentencing.
5 The court reasonably concluded that Dunnigan failed to meet his burden of showing a substantial
6 likelihood that his motions to set aside the jury’s verdict and for a new trial will be granted. The
7 district court also reasonably concluded that Dunnigan failed to present extraordinary
8 circumstances showing his detention would be inappropriate. It considered his arguments,
9 including that his post-trial motions will succeed due to insufficient evidence, that he is not a flight
10 risk or danger to society because of his unblemished fourteen-month record on pretrial release,
11 that his conviction does not increase his incentive to flee because he faces the same potential
12 sentences post-trial as he did pretrial, and that exceptional circumstances warrant his release
13 because the COVID-19 pandemic has made it more difficult to communicate with his attorneys
14 while incarcerated. We agree with the district court that these arguments do not overcome the
15 presumption in favor of detention—Dunnigan failed to carry his “plainly substantial” burden of
16 satisfying the requirements of 18 U.S.C. § 3143(a)(2) or § 3145(c) to warrant his release pending
17 sentencing. Abuhamra,
389 F.3d at 319.
18 In sum, we agree with the district court’s legal conclusions and identify no clear error in
19 the district court’s factual findings. We have considered Dunnigan’s other arguments and
20 conclude that they are without merit. The district court’s detention order is thus AFFIRMED.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk of Court
23
3
