Opinion
CRIMINAL NO. 19-10199-RWZ
05-06-2020
UNITED STATES of America v. Binh Thanh LE
James E. Arnold, Rachel Goldstein, United States Attorney's Office, Boston, MA, for United States of America. Miriam Conrad, Samia Hossain, Federal Public Defender Office, Boston, MA, for Binh Thanh Le.
James E. Arnold, Rachel Goldstein, United States Attorney's Office, Boston, MA, for United States of America.
Miriam Conrad, Samia Hossain, Federal Public Defender Office, Boston, MA, for Binh Thanh Le.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION OF DETENTION ORDER
DEIN, M.J.
I. INTRODUCTION
The defendant Binh Thanh Le is charged along with two others with conspiracy to manufacture, distribute, and possess with intent to distribute controlled substances, including MDMA (ecstasy), Ketamine, and Alprazolam (Xanax), in violation of 21 U.S.C. § 846. A detention hearing was held on May 15, 2019, after which this court found that the government had met its burden of proving (1) by clear and convincing evidence that no conditions could reasonably assure the safety of the community; and (2) by a preponderance of evidence that no condition or combination of conditions of release could reasonably assure the defendant's appearance. (Docket No. 26). This court found that the evidence at that juncture indicated that Le had created a "sophisticated and complex drug trafficking business" involving the purchase and sale of drugs on the Dark Web, conducted with Bitcoin. This court found that Le's drug trafficking business was designed for "utmost secrecy" and that he had access to a significant amount of untraceable funds. This court ordered Le and his co-conspirators detained. The District Judge reversed and set conditions for Le's co-conspirators, but affirmed the decision to detain Le. (Docket No. 63). Le has been detained at the Wyatt Detention Facility. There have been 10 cases of COVID-19 confirmed among the inmates of Wyatt.
This matter is presently before the court on "Defendant's Motion for Reconsideration of Detention Order." (Docket No. 83). Therein, the defendant asks the court to "temporarily release him on conditions, in light of the COVID-19 pandemic and the unsafe conditions at the Donald W. Wyatt Detention Facility, where he is currently detained. The motion is made pursuant to the Bail Reform Act, 18 U.S.C. § 3142(i), which provides for the ‘temporary release’ of a person in pretrial custody ‘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.’ " (Id. ). A remote hearing was held on April 30, 2020 which the defendant and his counsel participated by "zoom." After careful consideration of the oral and written arguments of counsel, the exhibits submitted by both sides, and the prior rulings of the court, the motion is ALLOWED. The defendant shall be released on conditions, including, without limitation, the following:
1. The defendant shall be released for 45 days, at the conclusion of which period the court will reassess the situation.
2. The defendant will live with his parents on home incarceration and location monitoring, through the use of electronic monitoring.
3. The defendant's parents shall post a $100,000 bond, secured by their home. The bond shall cover compliance with both the requirement that the defendant remain in his residence, and appear as required in court or to serve a sentence, as well as the requirement that he shall not commit any other criminal offense while on release.
4. There shall be no access to the internet by the defendant on any type of device. Any electronic device capable of accessing the internet used by his parents must be password protected by a password unknown to the defendant. His parents shall permit one of their phones to be used for Probation to teleconference with the defendant.
5. The defendant's sister shall serve as his third-party custodian.
6. The defendant shall turn in his passport to Probation and cannot apply for any other travel documents while this matter is pending.
II. DISCUSSION
This court incorporates by reference its earlier detention decision, as well as the decision of the District Judge denying the defendant's appeal thereof. For the reasons detailed therein, this court continues to believe that pre-trial detention was warranted at the time the decision was made. Nevertheless, this court find that there presently are compelling reasons warranting the defendant's temporary release from custody under the strict conditions outlined herein, and that these conditions are sufficient to reasonably assure the safety of the community and the defendant's appearance as required by the court.
There is no question that there are incidents of COVID-19 among the inmate population at Wyatt. The parties disagree as to extent and efficacy of the efforts undertaken by the prison officials to control the outbreak of the virus at the facility. This court does not need to resolve these disagreements. It is clear that inmates at the facility are unable to engage in the social distancing being urged upon the non-incarcerated residents of Massachusetts. It is also clear that no-one yet knows how to completely stop the virus from spreading, or how the virus will affect any specific person if they are infected.
The defendant does not have any physical conditions that put him at high risk if he contracts the virus. Susceptibility to severe consequences if infected is certainly a factor that this court has, and will continue, to consider in connection with the numerous motions for release due to the COVID-19 virus. However, even the release of seemingly healthy individuals may be appropriate where sufficient conditions can be imposed to reduce, if not eliminate flight risk and danger to the community. The reduction in the prison population in and of itself would help authorities take steps to prevent an outbreak of the virus in the confines of the facility.
The defendant had created an intricate drug trafficking network that had taken time to set up, and required him to travel throughout the Commonwealth to pick up and mail packages, among other things. The allegations are that he imported wholesale quantities of controlled substances, and processed and manufactured the drugs in Massachusetts. He then sold them via the internet. A temporary release would not give the defendant the opportunity to re-create his drug trafficking business. Moreover, location monitoring would prevent his travels to obtain the raw material, manufacturer the drugs, or distribute them.
To the extent that there was concern that the defendant would leave the country, those conditions have changed as well. Flying, in general, is much more restricted now, and even assuming he could travel without a passport, he would have much fewer options if he attempted to leave. Moreover, the government was particularly concerned about possible travel to Vietnam, where there could be difficulty extraditing him. However, it does not appear that he would be able to travel to Vietnam, since it seems that that country is not allowing in non-citizens.
The defendant does not have a criminal record, and there is evidence that he has used his period of incarceration to help get back on a better track. It appears that he is studying the principles of restorative justice, even though he is not enrolled in any program. He could use the period of release to continue his studies. The defendant seems fully capable of understanding that not complying with conditions of release could have serious negative repercussions.
For these reasons, this court concludes that temporary release is appropriate under the conditions defined herein.