KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE

Katharine Wagner, United States Attorney's Office, Springfield, MA, for United States of America.

Joan M. Williams, Springfield, MA, for Defendant Lorenzo Deconinck.

Thomas J. O'Connor, Jr., O'Connor Martinelli, Springfield, MA, for Defendant Juan Ramos.

MEMORANDUM AND ORDER CONCERNING DEFENDANT'S EMERGENCY MOTION FOR PRE-TRIAL RELEASE DUE TO RISK OF COMPLICATIONS FROM POTENTIAL COVID-19 INFECTION

KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE Defendant Juan Ramos was arrested on March 21, 2018 (Dkt. No. 19). He is charged by a second superseding indictment with conspiracy to distribute and to possess with intent to distribute more than 500 grams of cocaine (Dkt. No. 101). On May 18, 2018, I ordered Mr. Ramos detained based on findings that the government had shown by a preponderance of the evidence that he posed a risk of flight and by clear and convincing evidence that he would be a danger to the community if he was released pending trial. The reasons for these findings are set forth in the court's Order of Detention (Dkt. No. 43). At this time, Mr. Ramos has a trial date of June 22, 2020 (Dkt. No. 159).

On March 23, 2020, Mr. Ramos filed an emergency motion for release from custody pending trial on the grounds that medical conditions place him at risk for complications arising from his potential infection with COVID-19 while incarcerated (Dkt. No. 165 at 1). The court authorized the government to respond orally to the defendant's motion. The court held a telephonic hearing on the defendant's motion on March 25, 2020. Mr. Ramos attended by telephone and, after a colloquy, waived his right to be present in person at the hearing on the motion (Dkt. No. 167). At the conclusion of the hearing, the court took the motion under advisement. The premise of the defendant's motion is that the COVID-19 pandemic represents a change in circumstances or new evidence that warrants reconsideration of the court's decision to detain Mr. Ramos pending trial. For the reasons set forth below, the court finds that the circumstances of the COVID-19 pandemic diminish the risk that Mr. Ramos will flee pending trial, and that his continued detention poses a risk of danger to himself and others such that pretrial release is warranted subject to stringent conditions set forth below and in exhibit 3 hereto. Accordingly, the defendant's motion is granted.

When Mr. Ramos was arrested, he reported to the court's Probation Department that he had diabetes and asthma. In the defendant's motion and at the hearing, defense counsel represented that Mr. Ramos has diabetes and asthma, for which he is treated with albuterol and steroids, has been hospitalized in the past with influenza, and is overweight. Defense counsel offered to produce the defendant's medical records. Because Mr. Ramos reported asthma and diabetes in 2018 during his pretrial services interview when he had no incentive to exaggerate his medical problems, the court finds that Mr. Ramos has diabetes and moderate to severe asthma and deems in unnecessary to review the medical records at this time.

The Center for Disease Control currently represents that individuals with moderate to severe asthma "may be at higher risk of getting very sick from COVID-19" and that individuals with underlying medical conditions such as diabetes are at increased risk from the virus (Exh. 1). According to the CDC, the best way to prevent illness in these individuals is to avoid being exposed to the virus (Exh. 1). The defendant contends, and the court agrees, that incarceration increases his risk of exposure to the virus. So far as the court is aware, there have not been any cases of COVID-19 among inmates or guards at the Hampden County House of Corrections in Ludlow (Ludlow HOC), where the defendant is being held. The Ludlow HOC has taken significant steps to protect staff, inmates, and the general public in response to the COVID-19 pandemic. Those steps are explained in a posting on the Ludlow HOC's website, a copy of which is attached hereto as exhibit 2. Nonetheless, it is not possible for a medically vulnerable inmate such as Mr. Ramos to isolate himself in this institutional setting as recommended by the CDC, and guards and newly arrested individuals must enter the facility on a daily basis. News articles report that, in jails and another house of corrections in the Commonwealth, there have been cases of COVID-19 among prisoners and/or guards.

The facts on which the court's May 2018 detention order was based have not changed and, absent the COVID-19 pandemic, there would be no basis for reconsideration of the court's order to detain Mr. Ramos pending trial. In the court's view, however, the pandemic changes the calculus. At this time, Mr. Ramos cannot travel without a significant risk of exposure to the virus with the potentially severe health consequences that would follow, and therefore cannot readily flee the district. The court found that Mr. Ramos was a danger to the community because of his history of distributing controlled substances. Attempting to engage in such an activity at this time would, again, likely require in-person contact with other individuals who may very well be contagious. Further, detaining Mr. Ramos in an institutional setting in close quarters with others poses a very serious risk to his health that the court should, and is, taking into consideration. In these circumstances, there are conditions of supervised release that can reasonably assure the defendant's future appearances in court and the safety of the community and Mr. Ramos.

The court accepts, for the most part, the conditions of pretrial release proposed by Mr. Ramos. He will be in home detention at his mother's residence at 36 Vernon Street in Holyoke. He may leave the residence only for purposes of medical appointments, if any. Home detention will NOT be monitored by electronic means. The supervising probation officer will monitor Mr. Ramos’ compliance with the condition of home detention by placing random telephone calls to the landline in the home, with the schedule of such phone calls left to the discretion of the probation officer. The court will sign a warrant to be held in abeyance and activated if the probation officer has reason to believe that Mr. Ramos has left the home. Mr. Ramos will be in his mother's custody and his mother will post $25,000 in equity in her residence to ensure his future appearances. The posting of this financial security will be complicated by the current circumstances and need not be finalized in advance of Mr. Ramos’ release. Other more standard conditions of pretrial release are addressed in the conditions attached hereto as exhibit 3.

For the foregoing reasons, Defendant's Emergency Motion for Pre-Trial Release Due to Risk of Complications From Potential COVID-19 Infection is granted. The Clerk's Office is directed to set up a telephone conference to review the conditions of supervised release with Mr. Ramos as soon as possible.

It is so ordered. Exh. 1Exh. 2 EXHIBIT 3

United States District Court District of Massachusetts

UNITED STATES OF AMERICA, Plaintiff, Criminal Case No. 18-cr-30009-FDS v. 2] JUAN RAMOS, Defendant.

ORDER SETTING CONDITIONS OF RELEASE

IT IS ORDERED that the release of the Defendant is subject to the following conditions:

(1) The Defendant shall not commit any offense in violation of federal, state or local law while on release in this case.

(2) The Defendant shall maintain his residence. Defendant shall advise the court, Pretrial Services, defense counsel and the U.S. attorney in writing at least ten days before any proposed change in address and telephone number.

(3) The Defendant shall report as soon as possible, but no later than twenty-four hours after, to the Pretrial Services office any contact with any law enforcement personnel, including, but not limited to, any arrest, questioning, or traffic stop.

(4) Defendant must cooperate in the collection of a DNA sample if the collection is authorized by 42 U.S.C. 14135a.

(5) The Defendant shall appear at all proceedings as required and shall surrender for service of any sentence imposed as directed. The Defendant shall next appear at (if blank, to be notified)

Release on Personal Recognizance or Unsecured Bond

IT IS FURTHER ORDERED that the Defendant be released provided that:

( ) (5) The Defendant promises to appear at all proceedings as required and to surrender for service of any sentence imposed.

( ) (6) The Defendant shall execute an unsecured bond binding the Defendant to pay the United States the sum of dollars ( ) in the event of a failure to appear as required or to surrender as directed for service of any sentence imposed, or for any violation of any condition(s) of release.

Additional Conditions of Release

Upon finding that release by one of the above methods will not by itself reasonably assure the appearance of Defendant and the safety of other persons and the community, it is FURTHER ORDERED that the release of Defendant is subject to the conditions marked below:

(X) (7) The Defendant is placed in the custody of:

(X) (8) The Defendant shall:

(X) (a) report to Pretrial Services as directed.

(X) (b) execute a bond or an agreement to forfeit upon failing to appear as required, or for any violation of any condition(s) of release, the following sum of money or designated property: $25,000 to be secured by real property.

( ) (c) post with the court the following indicia of ownership of the above-described property: documentation as set forth in Recommended Procedure for the Posting of Real Property as Security for Defendant's Appearance Bond in Criminal Cases

( ) (d) execute a bail bond with solvent sureties in the amount of $

( ) (e) maintain/actively seek employment and submit ongoing verification to Pretrial Services as directed or

( ) (f) maintain or commence an education program.

( ) (g) surrender passport to Pretrial Services.

(X) (h) obtain no passport or any other travel documents.

(X) (i) abide by the following restrictions on personal association or travel: Travel is restricted to the District of Massachusetts without prior permission from the Probation and Pretrial Department.

(X) (j) avoid all contact, directly or indirectly, with any persons who are or who may become a victim or potential witness in the subject investigation or prosecution, including his co-defendant, defendants listed in the Government's Notice of Related Cases and potential witnesses identified by the Government.

( ) (k) undergo medical or psychiatric treatment and/or remain in an institution as follows: as directed by the Probation and Pretrial Department.

( ) (l) return to custody each (week) day as of ___ o'clock after being released each (week) day as of

(X) (m) maintain residence and provide Probation with any new address.

(X) (n) refrain from possessing a firearm, destructive device, or other dangerous weapons. All firearms to be removed from the house forthwith and the same certified to Pretrial Services.

( ) (o) refrain from ( ) any (X) excessive use of alcohol.

(X) (p) refrain from use or unlawful possession of a narcotic drug or other controlled substances defined in 21 U.S.C. § 802, unless prescribed by a licensed medical practitioner.

(X) (q) submit to any method of testing required by the Probation Officer for determining whether the defendant is using a prohibited substance. Such methods may be used with random frequency and include urine testing, the wearing of a sweat patch, a remote alcohol testing system, and/or any form of prohibited substance screening or testing. Defendant shall refrain from obstructing or attempting to obstruct or tamper in any fashion with the efficiency and accuracy of any testing which is required as a condition of release.

( ) (r) participate in a program of inpatient or outpatient substance abuse therapy and counseling if deemed advisable by the Pretrial Services Officer.

(X) (s) participate in one of the following home confinement program components. Defendant shall refrain from obstructing or attempting to obstruct or tamper in any fashion with the efficiency and accuracy of any electronic monitoring equipment which is required as a condition of release and shall abide by all the requirements of the home confinement program which ( ) will or (X) will not include the following location verification system: ( ) electronic monitoring bracelet OR ( ) Voice Identification system.

( ) (i) Curfew. You are restricted to your residence every day () from ___ to ___, or ( ) as directed by the Pretrial Services Officer; or,

(X) (ii) Home Detention. You are restricted to your residence at all time except as pre-approved by the court; Home detention will be monitored by random phone calls from the Probation Officer to Mr. Ramos on a schedule to be determined by the Probation Officer or,

( ) (iii) Home Incarceration. You are restricted to your residence at all times except as pre-approved by the court.

( ) (t) make payments toward a fund which can ultimately be used to compensate appointed counsel, as required in the companion order issued in this matter pursuant to 18 U.S.C. § 3006A.

( ) (u) submit to the location monitoring installed in the home by Probation and Pretrial Services and abide by all of the program requirements and instructions provided by the pretrial services office or supervising officer related to the proper operation of the technology.

( ) You must pay all or part of the cost of the program based on your ability to pay as determined by the pretrial services office or supervising officer.

(X) (v) I acknowledge that a warrant for my arrest has been signed by an authorized judicial officer and is being held in abeyance. The warrant may be activated without notice to me if I abscond in violation of the condition of home detention.

Advise of Penalties and Sanctions

TO THE DEFENDANT:

YOU ARE ADVISED OF THE FOLLOWING PENALTIES AND SANCTIONS:

A violation of any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of release, an order of detention, and a prosecution for contempt of court and could result in a term of imprisonment, a fine, or both.

The commission of any crime while on pre-trial release may result in an additional sentence to a term of imprisonment of not more than ten years, if the offense is a felony; or a term of imprisonment of not more than one year, if the offense is a misdemeanor. This sentence shall be in addition to any other sentence.

Federal law makes it a crime punishable by up to five years of imprisonment, and a $250,000 fine or both to intimidate of attempt to intimidate a witness, victim, juror, informant or officer of the court, or to obstruct a criminal investigation. It is also a crime punishable by up to ten years of imprisonment, a $250,000 fine or both, to tamper with a witness, victim or informant, or to retaliate against a witness, victim or informant, or to threaten or attempt to do so.

If after release, you knowingly fail to appear as required by the conditions of release, or to surrender for the service and additional punishment may be imposed. If you are convicted of:

(1) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more, you shall be fined not more than $250,000 or imprisoned for not more than ten years, or both;

(2) an offense punishable by imprisonment for a term of five years or more, but less than fifteen years, you shall be fined not more than $250,000 or imprisoned for not more than five years, or both;

(3) any other felony, you shall be fined not more than $250,000 or imprisoned not more than two years, or both;

(4) a misdemeanor, you shall be fined not more than $100,000 or imprisoned not more than one year, or both; A term of imprisonment imposed for failure to appear or surrender shall be in addition to the sentence for any other offense. In addition, a failure to appear or surrender may result in the forfeiture of any bond posted.

Acknowledgment of Defendant

I acknowledge that I am the Defendant in this case and that I am aware of the conditions of release. I promise to obey all conditions of release, to appear as directed, and to surrender for service of any sentence imposed. I am aware of the penalties and sanctions set for above.

Directions to United States Marshal

(X )The Defendant is ORDERED released after processing.

( ) The United States marshal is ORDERED to keep the Defendant in custody until notified by the clerk or judicial officer that the Defendant has posted bond and/or complied with all other conditions for release. The Defendant shall be produced before the appropriate judicial at the time and place specified, if still in custody.