Summary
noting defendant must show "that his medical condition presents 'compelling reasons' for temporary release" under § 3142
Summary of this case from United States v. DibeeOpinion
Case No. 2:19-CR-756-JAK
04-14-2020
UNITED STATES OF AMERICA, Plaintiff, v. Lamar Nolan RYAN, Defendant.
Robert J. Keenan, AUSA-Office of U.S. Attorney, Santa Ana, CA, for Plaintiff.
Robert J. Keenan, AUSA-Office of U.S. Attorney, Santa Ana, CA, for Plaintiff.
ORDER DENYING REQUEST FOR PRETRIAL RELEASE WITHOUT PREJUDICE
STEVE KIM, U.S. MAGISTRATE JUDGE
Defendant Lamar Nolan Ryan has been indicted for bank fraud and aggravated identity theft. (ECF 1). In February 2020, upon the motion of the United States, the Court ordered Defendant detained pending trial because no conditions could reasonably assure his court appearances and the safety of the public if he were released. (ECF 14). Since then, the global COVID-19 pandemic has emerged, leading to legitimate concerns of a viral outbreak in the federal prison system. Defendant now explains that he has a higher risk of contracting the COVID-19 virus because he has asthma. (ECF 21). As a result, the United States has stipulated to Defendant's pretrial release, purporting to agree with him that the factors in 18 U.S.C. § 3142(g) "now weigh in favor of his release" because of the "COVID-19 pandemic and [Defendant's] particular vulnerability to it." (ECF 21 at 2). That is the extent of the parties' analysis to support their perfunctory request for Defendant's release. And while it no doubt reflects a laudable exercise of compassion, it is not enough—factually or legally—to overcome the original reasons why the Court ordered Defendant detained (at the government's request no less) under the Bail Reform Act.
Whether and under what conditions Defendant may be released pending trial under § 3142 is different from whether Defendant should be released for valid health reasons because of the COVID-19 pandemic. Defendant's susceptibility to coronavirus infection is unnecessary for pretrial release if the factors in § 3142(g) otherwise justify it. That is why his initial detention—and any later reconsideration of it based on materially changed circumstances—both depend solely "on the issue whether there are conditions of release that will reasonably assure the appearance of [Defendant] as required and the safety of any other person and the community." 18 U.S.C. § 3142(f). But just as Defendant's asthma is unnecessary for pretrial release during the worldwide COVID-19 pandemic, it is insufficient, as well. See, e.g., United States v. Lee , 2020 WL 1540207, at *3 (E.D. Mich. Mar. 30, 2020) ("[T]he COVID-19 pandemic cannot be the sole basis for releasing a defendant from custody pending trial; the Court must still consider the Section 3142(g) factors.").
In other words, it is critical not to confuse or conflate the statutory reasons why a defendant should be released pending trial under §§ 3142(a) and (f) with other extra-statutory reasons why a defendant—who should otherwise be detained—might still deserve some form of pretrial release. For the latter question, the Bail Reform Act authorizes "temporary release" pending trial into "the custody of a United States marshal or another appropriate person" for (as pertinent here) "compelling reasons" only. 18 U.S.C. § 3142(i). But those compelling reasons under § 3142(i) "are not additional factors the Court may consider in evaluating whether to detain a defendant in the first place; those factors are in section 3142(g) only." United States v. Villegas , 2020 WL 1649520, at *1 (C.D. Cal. Apr. 3, 2020). And this is no semantic or immaterial distinction, for it determines not only the source but also the limit of the Court's authority under the Bail Reform Act. If any professed reasons—so long as they are seemingly "compelling" enough—could justify pretrial release under § 3142(a) or substitute for the release factors enumerated in § 3142(g), "the exception in section 3142(i) would swallow all detention orders." Id. at *2.
None of this is to say that Defendant may not be temporarily released pending trial under § 3142(i) because of an underlying medical condition. But without more, the mere fact that Defendant's asthma places him in a clinical population at greater risk of coronavirus infection does not distinguish him from other detainees or inmates with similar medical conditions who have not sought—or been denied—pretrial release during the current national health crisis. Indeed, even with asthma, Defendant is no different from the subset of the public who must also reckon with asthma in the face of potential COVID-19 exposure—a risk as prevalent outside prison as it is inside. So if there are no materially changed circumstances independently justifying pretrial release under § 3142(f), Defendant must show—with or without the government's assent—that his medical condition presents "compelling reasons" for temporary release pending trial under § 3142(i). See Villegas , 2020 WL 1649520, at *2 ; United States v. Cox , 2020 WL 1491180, at *2 (D. Nev. Mar. 27, 2020).
Finally, while the Court's determination under § 3142(i) is discretionary, that discretion is not unbounded. Among the reasons the Court should consider for temporary release in the current pandemic are: "(1) the original grounds for the defendant's pretrial detention, (2) the specificity of the defendant's stated COVID-19 concerns, (3) the extent to which the proposed release plan is tailored to mitigate or exacerbate other COVID-19 risks to the defendant, and (4) the likelihood that the defendant's proposed release would increase COVID-19 risks to others." United States v. Clark , 2020 WL 1446895, at *3 (D. Kan. Mar. 25, 2020). Equally important, Defendant must identify an appropriate custodian for his proposed release, as required by § 3142(i). (Naturally, a U.S. marshal—while statutorily authorized for this purpose—is not an option). A third-party custodian, unlike a mere surety, "agrees to assume supervision [of the defendant] and to report any violation of a release condition to the court[.]" 18 U.S.C. § 3142(c)(1)(B)(i). That "designated person" must "reasonably ... assure the [court] that the [defendant] will appear as required and will not pose a danger to the safety of any other person or the community." Id. And the responsible custodian—if also a surety—will "risk not just monetary loss but criminal prosecution should [the defendant] flee or otherwise violate the conditions of his release[.]" Matter of Extradition of Ahn , 2019 WL 6973513, at *3 (C.D. Cal. July 2, 2019).
For all these reasons, the parties' stipulated request for Defendant's pretrial release (ECF 21) is DENIED without prejudice to renewing the request if Defendant can make the necessary showings under 18 U.S.C. § 3142(i). See, e.g., United States v. Herrera , Case No. 2:17-cr-0061-AB. If the parties intend to renew their request, however, they must consult with Pretrial Services and set forth their recommendation. The Court will expedite consideration of any proper stipulation and proposed order for temporary release under § 3142(i), but immediate release is disfavored without at least material satisfaction of key bond conditions.