United States v. Rivers

United States v. Rivers

                                  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 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 4th day of March, two thousand twenty-one.

                     REENA RAGGI,
                     RICHARD J. SULLIVAN,
                                   Circuit Judges,


                             Appellee,                   20-3971-cr






FOR DEFENDANT-APPELLANT:                                      DAWN M. CARDI, Cardi & Edgar LLP,
                                                              New York, NY.

FOR APPELLEE:                                                 JONATHAN E. ALGOR (David C. James, on
                                                              the brief), Assistant United States Attorneys
                                                              for Seth D. DuCharme, Acting United
                                                              States Attorney for the Eastern District of
                                                              New York, Brooklyn, NY.

       Appeal from an order entered November 17, 2020 by the United States District Court for
the Eastern District of New York (William F. Kuntz, Judge).

ADJUDGED, AND DECREED that the order of the District Court be and hereby is

         Defendant-Appellant Kassin Rivers appeals from an order denying him bail pending trial 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 and the issues on appeal.

        Rivers was arrested in August 2018 after being indicted for bank robbery in violation of 18
U.S.C. §§ 2113(a), (d). In April 2020, as the COVID-19 pandemic began to disrupt court operations,
Rivers sought pretrial release on the basis of his underlying medical conditions. The District Court
denied Rivers’s motion after weighing the factors set forth in 18 U.S.C. § 3142(g) and determining
that there was no set of conditions sufficient to reasonably assure Rivers’s appearance and the safety
of the community. The District Court also declined to temporarily release Rivers, noting his asserted
medical vulnerabilities were not documented.

         In September 2020, as the pandemic continued, the District Court continued Rivers’s trial
from November 2020 to July 2021. On September 14, 2020, Rivers filed a motion for
reconsideration of his bail motion. But the District Court determined that its earlier determination
that Rivers was a flight risk and a danger to the community remained unchanged. 1 The District
Court again found no “compelling reason” for temporary release under Section 3142(i), explaining
that it had “concerns about releasing [Rivers] given the violent nature of the instant offense and his
extensive criminal background,” despite Rivers’s “serious underlying medical conditions.” Order
dated November 17, 2020 at 5.

    1In reaching its decision, the District Court acknowledged that Rivers had provided “updated medical
records[.]” Order dated November 17, 2020 at 2; see also

id. at 4-5

(discussing medical conditions).

        This Court “appl[ies] deferential review to a district court’s bail determination and will not
reverse except for clear error.” 2 Here, we find no clear error in the District Court’s predicate factual
findings or in its conclusions that Rivers posed a flight risk and a danger to the community. Nor did
the District Court abuse its discretion, much less clearly err, in concluding that Rivers’s proffered
reasons for temporary release were not sufficiently compelling in light of the countervailing factors
that led the District Court to deny his bail motion. 3


        We have considered the other arguments raised by Rivers on appeal and found in them no
basis for reversal. For the foregoing reasons, we AFFIRM the District Court’s order dated
November 17, 2020 denying Rivers bail pending trial. Rivers’s separate motion for bail (Dkt. #19) is
hereby DENIED.

                                                             FOR THE COURT:
                                                             Catherine O’Hagan Wolfe, Clerk

        2  United States v. Mattis, 

963 F.3d 285

, 291 (2d Cir. 2020) (internal quotation marks and alteration
omitted). 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. . . . We 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.”

Id. (internal quotation marks

alteration omitted).
         3 We have not addressed whether clear-error or abuse-of-discretion review applies to a district court’s

decision on a motion for temporary release under Section 3142(i). See, e.g., United States v. Bryant, 827 F. App’x
122, 126 n.3 (2d Cir. 2020) (non-published summary order) (noting “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), [but] at least two of our sister circuits have reviewed such orders for abuse of
discretion”); but see United States v. Kelly, 

2020 WL 7019289

, at *2 (2d Cir. 2020) (non-published summary
order) (holding “court did not clearly err in determining that Kelly failed to demonstrate a ‘compelling reason’
for temporary release” (quoting 18 U.S.C. § 3142(i))). Because we would affirm the District Court’s order
even under the abuse-of-discretion standard, we decline to reach the question of the appropriate standard of
review here.


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