Opinion
Case No. 19-cr-00158-PX-9
04-29-2020
UNITED STATES of America v. Irving HERNANDEZ
Lauren E. Perry, Sean R. DeLaney, United States Attorney's Office, Baltimore, MD, for United States of America.
Lauren E. Perry, Sean R. DeLaney, United States Attorney's Office, Baltimore, MD, for United States of America.
Memorandum Granting Defendant's Motion for Release
J. Mark Coulson, United States Magistrate Judge
On April 14, 2020, Defendant filed a motion for review of this Court's previous order of detention. (ECF No. 372). The Government has filed its opposition. (ECF No. 374). This Court then entered an order asking for additional information (ECF No. 378) and the parties have filed their respective supplemental pleadings. (ECF Nos. 381 and 382). The Court finds that no hearing is necessary. For the reasons set out more fully below, Defendant's motion is GRANTED .
Defendant moves for a review of his detention order pursuant to 18 U.S.C. § 3145(b), raising concerns relating to the COVID-19 pandemic. Because those concerns were not present at the time of this Court's original detention decision, the Court will address them pursuant to 18 U.S.C. § 3142(f)(2)(B) which allows a judicial officer to reopen a detention decision if information exists that was not known to the movant and has a material bearing on the release decision.
On March 28, 2019, a federal grand jury for the District of Maryland returned an indictment charging the defendant and several co-defendants with Racketeering, in violation of 18 U.S.C. § 1962(c), and Conspiracy to Distribute and Possess with Intent to Distribute a Controlled Substance, in violation of 21 U.S.C. §§ 841, 846. (ECF No. 1). The charges stemmed from the investigation of a large conspiracy to bribe Maryland correctional officers and employees to smuggle drugs and other contraband into a Maryland state prison, the Maryland Correctional Institute Jessup ("MCIJ"), involving inmates, correctional staff and outside "facilitators". Id.
On April 16, 2019, the defendant was arrested pursuant to the indictment. This Court held a detention hearing on July 24, 2019. At the hearing, the Court followed the relevant provisions of the Bail Reform Act, 18 U.S.C. § 3142. The Court found that there was probable cause to support the charges, that the charges carried a statutory presumption of detention pursuant to Section 3142(e)(3) due to the presence of a drug felony with a potential sentence of greater than ten years, and that Defendant failed to rebut this presumption as to danger to the community. (ECF No. 245). The Court found by clear and convincing evidence that Defendant's release would present a danger to community safety and that there was no condition or combination of conditions of release that would reasonably assure community safety. Id.
In supporting its decision, the Court relied upon the factors enumerated in Section 3142(g), in addition to the statutory presumption of detention. These included the detention recommendation of Pretrial Services. Id. The Court also found the Government's proffer strong, relying on text messages between Defendant and a prison employee he bribed to assist in smuggling the contraband into MCIJ, and instructions from Defendant to his mother to transfer funds to certain accounts. Id. ; ECF No. 374 at 5.
Defendant's mother was not charged, and her level of knowledge of her son's precise activities is not clear to the Court.
Further, the Court noted Defendant's criminal history. (ECF No. 245). Defendant received his first adult conviction in 2011 at age 17 for possession of a controlled dangerous substance ("CDS")—not marijuana and illegal possession of a regulated firearm. He was placed on three years’ probation. While on probation, in 2013, at age 19, he was convicted of possession with intent to manufacture/distribute and was sentenced to time served. However, this conviction also violated his previous probation, resulting in a sentence of one year. In 2016, at age 22, Defendant was convicted of "CDS: possession of firearms," receiving a five year sentence. It was during this incarceration that Defendant allegedly engaged in the acts detailed in the present indictment involving his coordination of smuggling contraband into MCIJ. Notably, having been released on mandatory supervision on February 4, 2019, Defendant was arrested on April 16, 2019 on his way to a meeting with his State probation officer and was found in possession of suboxone. (ECF No. 374 at 3).
Finally, the Court was concerned that the nature of the charges, including defeating security measures in place at MCIJ to prevent contraband, allowing him to smuggle and sell CDS and other contraband within the facility while incarcerated, called into question the effectiveness of community release. (ECF No. 245).
Defendant does not attempt to reargue the factors originally relied upon by the Court in its July 24, 2019 detention decision beyond pointing out that the current charges do not allege any acts of violence or weapons connected to the smuggling scheme. (ECF No. 372 at 3-4). Rather, Defendant argues that his conditions of confinement at the Correctional Treatment Facility ("CTF") (which is part of the D.C. Jail campus) in the setting of COVID-19 put him at unreasonable risk of contracting the virus, and that his underlying lung damage secondary to a previous stab wound increases his risk of complications should he contract the virus. Id.
The Court is keenly aware of both the public health emergency created by the COVID-19 pandemic and the challenges at the D.C. Jail regarding COVID-19 prevention, screening, quarantining and testing. The latter are detailed in a comprehensive report and recommendations by independent inspectors appointed by the U.S. District Court for the District of Columbia in the pending case of Banks v. Booth , 20-849 (ECF No. 47), and serve as the basis for a Temporary Restraining Order entered by presiding Judge Colleen Kollar-Kotelly on April 19, 2020 (ECF No. 49).
In that lawsuit brought by inmates (and supported by correctional officers) against the D.C. Department of Corrections ("DOC"), residents of the D.C. Jail Complex, including CTF, seek temporary and permanent injunctive relief not only for themselves but for a putative class of inmates that would include Defendant based on alleged violations of the Fifth and Eighth Amendments to the U.S. Constitution relating to conditions of confinement in the setting of COVID-19. In granting the requested temporary restraining order, Judge Kollar-Kotelly mandated certain specific corrective action aimed at immediately improving the conditions of confinement at the D.C. Jail, including CTF. For its part, the DOC has already taken steps towards implementing some of these recommendations, as expressed in a memorandum attached to the inspectors’ report.
Notably, however, Judge Kollar-Kotelly did not order the specific release or transfer of any inmate nor a reduction in the overall inmate population at this time, notwithstanding the constitutional issues she identified. Obviously, that may change as the case moves from the posture of a temporary restraining order to that of a preliminary and perhaps permanent injunction, and may well rest on how much progress the DOC makes on the ordered improvements in the interim.
At present, Judge Kollar-Kotelly, with the help of able advocates, their respective experts, and that court's own independent inspectors, is undoubtedly in the best position to make assessments of current overall conditions at the D.C. Jail, order necessary changes, and monitor compliance so as to address Fifth and Eighth Amendment concerns raised by those general conditions as to the named plaintiffs and the putative class members such as Defendant. Although the pendency of that action does not restrict this Court from assessing Defendant's motion under the Bail Reform Act (which, necessarily, requires an individual assessment of Defendant's situation to include COVID-19 risk), some recognition of principles of comity is appropriate to promote the twin goals of avoiding "an unnecessary burden on the federal judiciary" and preventing "the embarrassment of conflicting judgment." In re Naranjo , 768 F.3d 332, 348 (4th Cir. 2014) (quoting Church of Scientology of Cal. v. U.S. Dep't of Army , 611 F.2d 738, 750 (9th Cir. 1979) ). Thus, this Court limits its focus to application of the Bail Reform Act.
If this Court did go on to consider the broader Fifth and Eighth Amendment issues based on the overall conditions at the D.C. Jail, it would at this stage find that the measures ordered by Judge Kollar-Kotelly and undertaken by the DOC were an appropriate response to those constitutional concerns, barring additional future evidence that conditions continue to deteriorate nonetheless.
Although this Court is hopeful that, with Judge Kollar-Kotelly's stewardship, the constitutional concerns at the D.C. Jail are being addressed, and at this stage it remains a work in progress with regard to its COVID-19 response. While it remains difficult to predict with certainty how much that risk would diminish should Defendant be released, or how quickly or effectively DOC measures will be implemented, suffice it to say that at present, Defendant continues to experience a meaningful increase in his risk of contracting the virus while detained versus his risk in the community.
It is tempting to quantify that risk by comparing the infection rate at the D.C. Jail to the overall infection rate in the surrounding region. As has been seen however, different groups, even within the same region, experience infection in different ways due in part to geography, demographics, health status, socio-economic status and the traditional barriers to health care. Moreover, a lack of available testing may understate the true rate of infection. Finally, risk of infection is also a function of one's ability and willingness to follow the directives of public officials and the recommendations of public health experts.
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Defendant's health risk, however, cannot be the sole focus of this Court under the Bail Reform Act. Congress has additionally tasked the Court with assessing the risk to his community should Defendant be released. The Court has already determined that the traditional 3142(g) factors (together with the statutory presumption) warranted detention. The question for the Court is whether the COVID-19 health risks to the Defendant, should he remain detained, outweigh those traditional Section 3142(g) factors and the COVID-19 health risk to the community that Defendant's release could occasion. It is with that assessment in mind that the Court entered its April 21, 2020 order tasking the parties with providing additional information to supplement the record. (ECF No 378).
In his supplementation, Defendant did document his previous stab wound in 2013, residual pain from that event, and some medical literature suggesting that those experiencing such trauma are at increased risk for infection. (ECF No. 381 at ¶ 7-16). As the Government has observed, that medical literature suggests to the Court that the highest risk of infection following trauma is closer in time to the event rather than seven years later. Thus, this is not a strong factor in the Court's decision.
Defendant also provided detail as to his individual conditions of confinement which included that on his tier of approximately 70 inmates, he currently did not have consistent access to cleaning supplies or soap, and that he was provided clean bedding and clothing only once per week. Id. at ¶ 17. This confirms some of the general observations of the Banks inspectors and is the subject of remedial action per Judge Kollar-Kotelly's temporary restraining order.
Finally, Defendant sets forth a detailed release plan where his sister or his daughter's grandmother would transport him to the daughter's grandmother's residence. Id. at ¶¶ 18-20. She is sixty-seven years old with no health issues, no criminal record, and is a recently retired corrections officers with no criminal record. Id. She is the sole occupant of the residence and has an extra bedroom where Defendant could reside to self-quarantine as necessary. Id. The Court has verified with Pretrial Services that it has no objection to the residence or proposed custodian (although its original recommendation remains unchanged).
Under the circumstances, the Court will release Defendant. The conditions at the D.C. Jail place him at a meaningfully increased risk of contracting the virus versus his risk in the community. The proposed third-party custodian is strong, can assist the Court in ensuring compliance with release conditions and public health directives, and the residence can accommodate any necessary self-quarantine. There is no allegation of violence in the current indictment, and although Defendant's previous history of firearms possession is concerning, one of the convictions was at age 17 and the second at age 22, and neither alleged the actual use of a firearm or other violent act.
The Court will draft an appropriate conditional release order.