Opinion
1:19-CR-00067 EAW
05-26-2020
UNITED STATES of America, v. Scott AIKENS, Defendant.
Jeremy Murray, U.S. Attorney's Office, Buffalo, NY, for United States of America. Herbert L. Greenman, Joel L. Daniels, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Defendant.
Jeremy Murray, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Herbert L. Greenman, Joel L. Daniels, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Pending before the Court is a motion filed by defendant Scott Aikens (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 45). For the reasons set forth below, Defendant's motion is denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On September 14, 2018, Defendant was charged by criminal complaint with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). (Dkt. 1). An amended criminal complaint filed on September 18, 2018, charged defendant with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1). (Dkt. 3). On July 2, 2019, Defendant appeared before the undersigned, waived indictment, and pleaded guilty pursuant to a plea agreement to violating 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). (Dkt. 24; Dkt. 25; Dkt. 26; Dkt. 27). The plea agreement contemplated a sentencing range under the Sentencing Guidelines of 78 to 97 months in prison. (Dkt. 26 at ¶ 15). The Presentence Investigation Report ("PSR") also calculated a recommended prison sentence under the Sentencing Guidelines of 78 to 97 months. (Dkt. 30 at ¶ 67). On December 11, 2019, the undersigned sentenced Defendant to a below-Guidelines sentence of 54 months in prison, to be followed by five years of supervised release. (Dkt. 42; Dkt. 43).
On May 12, 2020, Defendant filed the pending motion for compassionate release. (Dkt. 45). Defendant contends that his request for release is justified by, among other reasons: the COVID-19 pandemic; his placement at Elkton Federal Correctional Institution ("Elkton FCI") which has well-documented struggles in trying to contain the spread of the virus; Defendant's medical conditions; and the stable environment to which he would be released. Defendant will be 62 years old in July (Dkt. 30 at 2), and according to the PSR, he suffers from "high cholesterol, high triglycerides, mild arrhythmia, and high blood pressure" (id. at ¶ 83). Defendant contends that he was hospitalized in March 2020, "after suffering certain heart issues" at Elkton FCI (Dkt. 45 at ¶ 10), and that his medical condition has received "scant treatment" at Elkton FCI where he has been placed back in the general population where social distancing is not accommodated (id. at ¶ 12). Defendant claims that shortly after arriving at FCI Elkton, he was diagnosed with "Cardiac Arrhythmia." (Id. at ¶ 42).
On March 13, 2020, President Trump declared a National Emergency concerning COVID-19. Proclamation No. 9994, 85 Fed. Reg. 15337 (Mar. 13, 2020). According to the World Health Organization's website, as of May 26, 2020, there were 5,370,375 confirmed cases of COVID-19 worldwide, with 344,454 confirmed deaths. See Coronavirus (COVID-19), World Health Org., https://covid19.who.int/ (last visited May 26, 2020).
The Government filed is response in opposition on May 20, 2020. (Dkt. 49). The Government contends that Defendant has failed to establish extraordinary and compelling reasons for a reduction in his sentence and that consideration of the factors set forth at 18 U.S.C. § 3553(a) mandates against allowing Defendant to effectively only serve a six-month sentence for his crime.
In addition to the submissions of counsel, the United States Probation Office ("USPO") submitted a memorandum to the Court on May 19, 2020, noting its opposition to Defendant's motion. The USPO memorandum disputes the accuracy of Defendant's reports concerning the conditions at Elkton FCI, based upon communication with the case manager assigned to Defendant's floor at the facility.
By letter dated May 21, 2020, Defendant responded to the USPO memorandum and the Government's opposition, disputing the accuracy of the conditions as recounted in the USPO memorandum. (Dkt. 50). According to Defendant, social distancing is not being practiced within the facility, he has been provided just one mask in late March that he must continue to reuse, testing is not being regularly employed at the facility, and a physician has not been observed on the floor since Defendant returned from the hospital (despite the facility's claims to the contrary in the USPO memorandum).
Defendant filed a further submission on May 22, 2020, bringing to the Court's attention a decision by United States District Judge James S. Gwin, who is presiding over an emergency habeas corpus petition brought by medically vulnerable inmates housed at Elkton FCI. (Dkt. 53). Judge Gwin concluded that despite the preliminary injunction that he had issued, the facility had "made limited efforts to reduce the COVID-19 risks for subclass members within the prison." Wilson v. Williams , No. 4:20-CV-00794, 2020 WL 2542131, at *1 (N.D. Ohio May 19, 2020). Moreover, the test results that have been conducted "show how ineffective [the Elkton FCI Warden and other BOP officials] have been at stopping the spread [of the virus]." Id. Indeed, the data that has been collected from COVID-19 tests "demonstrates that almost one in four inmates at Elkton has been infected—an unacceptable number." Id. Moreover, with respect to the identified medically vulnerable inmates, the facility has "made only minimal effort to get at-risk inmates out of harm's way." Id. at 2.
Among the relief ordered by Judge Gwin was the identification of all medically vulnerable inmates housed at Elkton FCI. See Wilson v. Williams , No. 4:20-CV-00794, 455 F. Supp. 3d 467, 480–81 (N.D. Ohio Apr. 22, 2020). Defendant is not identified as a medically vulnerable inmate. See Exhibit A to Notice of Identification of Inmates, Wilson v. Williams , No. 4:20-CV-00794, Dkt. 35-1 (N.D. Ohio Apr. 30, 2020); Exhibit B to First Response to the Court's May 19, 2020 Order (Dkt. 89-2), Wilson v. Williams , No. 4:20-CV-00794, Dkt. 89-2 (N.D. Ohio May 21, 2020).
III. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614, No. 02 CR 743-07 (CM) (S.D.N.Y. Jan. 15, 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term; and (4) the reduction in the prison sentence is consistent with the Sentencing Commission's policy statements.
The Government does not oppose Defendant's application on exhaustion grounds, as he has filed requests with the Warden at Elkton FCI for release and more than 30 days have elapsed since the Warden's receipt of those requests (which were denied). (Dkt. 49 at 5 n.1); see also United States v. Wen , 454 F. Supp. 3d 187, 192–94, No. 6:17-CR-06173 EAW, (W.D.N.Y. Apr. 13, 2020) (as a claim-processing rule, § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional and thus subject to the doctrines of waiver and equitable estoppel). Thus, the exhaustion requirements of the statute do not operate to bar the Court's consideration of the motion.
With respect to the merits of Defendant's motion, the Court cannot resolve the factual disputes concerning the severity of the conditions at Elkton FCI based on the record before it. As the Court previously acknowledged, the situation at the facility appears dire. See United States v. McIndoo , No. 1:15-CR-00142 EAW, ––– F.Supp.3d ––––, ––––, 2020 WL 2201970, at *4 (W.D.N.Y. May 6, 2020). While the Government admits in response to the present motion that Elkton FCI has been "particularly affected by COVID-19" (Dkt. 49 at 1), the Government maintains that Elkton FCI has taken significant steps to stop the spread of the virus within its facility (id. at 4-8). However, the data does not paint a favorable picture. As of May 26, 2020, Elkton FCI had the second highest level of inmate deaths of any BOP facility (9 inmate deaths) and the third highest level of inmate positive cases (163 positive inmates). See COVID-19: Coronavirus , Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited May 25, 2020). Moreover, the findings by Judge Gwin in Wilson v. Williams as detailed above, suggest that despite that court's preliminary injunction, the facility has failed to institute steps necessary to attempt to combat the spread of the virus.
With respect to Defendant's current medical conditions, the Government argues that they "are not among the conditions that could put him ‘at higher risk for severe illness from COVID-19....’ " (Dkt. 49 at 10). Defendant counters that the Government "has somewhat minimized Mr. Aikens’ medical condition." (Dkt. 50 at 2). The Court is hamstrung in resolving whether Defendant is at an increased risk based on the record before it. Indeed, even the Centers for Disease Control and Prevention ("CDC") acknowledge the limits on the present data available with respect to the disease since it "is a new disease and there is limited information regarding risk factors for severe disease." Frequently Asked Questions: Higher Risk , Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Higher-Risk (last visited May 26, 2020). Individuals with "serious heart conditions" regardless of age, particularly if not well controlled, are identified as being at higher risk by the CDC. Id. With respect to individuals with high blood pressure, the CDC states as follows:
At this time, we do not think that people with high blood pressure and no other underlying health conditions are more likely than others to get severely ill from COVID-19. Although many people who have gotten severely ill from COVID-19 have high blood pressure, they are often older or have other medical conditions like obesity, diabetes, and serious heart conditions that place them at higher risk of severe illness from COVID-19.
Frequently Asked Questions: COVID-19 and Hypertension , Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/faq.html#COVID-19-and-Hypertension (last visited May 26, 2020). Based on Defendant's reported medical conditions, the Court is not able to resolve on this record whether he is at an increased risk of serious illness from COVID-19.
With these gaps in the record concerning the severity of the conditions at Elkton FCI and the significance of Defendant's present medical conditions, the Court would need supplemental submissions or to conduct a hearing in order to resolve those issues. However, the Court need not go down that road, because even if those issues were resolved in Defendant's favor, the Court's consideration of the § 3553(a) factors necessitates denial of Defendant's motion, at least at this time.
The factors set forth at 18 U.S.C. § 3553(a) to be considered in connection with the imposition of a sentence include the following:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established [under the Sentencing Guidelines.]
18 U.S.C. § 3553(a)(1-4). Even if a court determines that extraordinary and compelling reasons justify a reduction in Defendant's sentence—based for instance on consideration of a BOP facility's abysmal conditions coupled with a Defendant's medical vulnerability to COVID-19—the applicable factors set forth at 18 U.S.C. § 3553(a) must also be considered. 18 U.S.C. § 3582(c)(1)(A) ; see United States v. Ebbers , No. (S4) 02-CR-1144-3 (VEC), 432 F. Supp. 3d 421, 430–31 (S.D.N.Y. Jan. 8, 2020) ("The Court thus finds that, in considering the section 3553(a) factors, it should assess whether those factors outweigh the ‘extraordinary and compelling reasons’ warranting compassionate release, particularly whether compassionate release would undermine the goals of the original sentence.").
Defendant, who is almost 62 years old, engaged in serious and heinous criminal conduct. Defendant was a customer of a Thai website where child sex abuse material was sold and shared among the users of the website. (Dkt. 30 at ¶¶ 13, 15, 19, 20, 22). When the Thai administrator of the website was arrested in January 2018, he admitted to sexually abusing 11 minor males in a small village in Thailand and selling the produced material on the website. (Id. at ¶ 14). Defendant posted public comments to the website reflecting abhorrent and deviant interests. (Id. at ¶ 18). When law enforcement executed an early morning search warrant at his home, Defendant was caught viewing child pornography on his laptop. (Id. at ¶¶ 27-28). Although Defendant denied producing child pornography or inappropriately touching a child (id. at ¶¶ 29, 31), Defendant's intense fascination with child pornography contributed to the victimization of children—a segment of society that is particularly vulnerable and for whom the child pornography statutes are designed to protect. Defendant admitted to law enforcement that he had been viewing child pornography over the last several years, that he had a preference for viewing young boys engaged in sex acts with each other, and that he had viewed thousands of images and videos depicting this material. (Id. at ¶ 31). A forensic analysis of the devices seized from Defendant revealed 683 videos and 22 images of child pornography. (Id. at ¶ 33). Defendant taught school to middle-high school aged children for 13 years, until his arrest when he resigned. (Id. at ¶¶ 24, 95). In addition to teaching, he was actively involved in various extracurricular activities involving children. (Id. at ¶ 96). In other words, for years, Defendant was entrusted with children in the community—yet, by his own admission, he engaged in conduct reflecting deviant sexual interests toward children.
The Court acknowledges, as it did at sentencing, that separate and apart from his offense conduct, Defendant has otherwise led a remarkable life. He has no prior criminal record, he was well-respected in his community and has a loving and supportive family and network of supporters, he is hard-working and owns a farm, and he had no issues while on pretrial release. The Court also has considered (as it did at sentencing) the report from Michael E. Rutter, Ph.D., who opined that Defendant is a low-risk to reoffend. (Dkt. 45-4 at 2-12). Further, the Court has considered Defendant's medical and mental health conditions, and the challenges in treating those issues in a prison setting even under the best of circumstances, let alone the difficulties in view of the COVID-19 pandemic.
It was based on a consideration of those § 3553(a) factors that the Court ultimately imposed a below-Guidelines sentence in this case. However, the Court's assessment was that the sentence it imposed was sufficient but not greater than necessary to comply with the objectives of sentencing set forth at § 3553(a). Even with the developments related to COVID-19 since the sentence was imposed in this case, the § 3553(a) factors do not support reducing Defendant's sentence to time served.
In essence, Defendant is asking this Court to impose a sentence of less than six months for his crime involving child pornography because of the conditions at Elkton FCI and his medical conditions that potentially place him at a greater risk if he contracts the virus. The pandemic is serious and the virus can be deadly—both inside and outside a prison setting. The Court does not quarrel with the notion that the challenges in combatting COVID-19 are greater in a prison setting and Elkton FCI appears to be doing a particularly poor job of controlling the spread of the virus. To be sure, the Court is gravely concerned about the conditions at Elkton FCI and the potential impact on Defendant if he contracts the virus. However, even with those concerns, the Court cannot justify a sentence of less than six months for Defendant's crimes. To do so would be a dereliction of this Court's responsibilities.
That said, the BOP needs to comply with its responsibilities. The BOP must do more at Elkton FCI to stop the spread of the virus and protect its inmate population. If it fails to do so, and Defendant is kept at the facility and is able to present credible evidence of this failure (along with evidence to support his medical vulnerability to this virus), the Court may entertain a further motion for a reduction in Defendant's sentence. In other words, while the Court currently concludes that "the section 3553(a) factors ... outweigh ... [any] ‘extraordinary and compelling reasons’ warranting compassionate release," Ebbers , 432 F.Supp.3d at 430–31, that calculus may change if BOP does not take swift and appropriate action to control the spread of COVID-19 at Elkton FCI or otherwise transfer Defendant to a safer facility.
To be clear, the Court is not resolving at this time whether Defendant has presented extraordinary and compelling reasons warranting his release, as even if that burden had been met, the § 3553(a) factors warrant denial of the motion at this time.
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IV. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 45) is denied.
SO ORDERED.