Opinion
CRIMINAL NO. PWG-19-0140
07-08-2020
UNITED STATES OF AMERICA v. JUSTIN ANTOINE
MEMORANDUM AND ORDER
Currently pending are Defendant's Motion to Reconsider Order of Detention (ECF No. 229) ("Motion") , the Government's Opposition to Motion to Reconsider Order of Detention (ECF No. 231) ("Opposition") and Defendant's Reply to Government's Response to Order of Detention (ECF No. 238) ("Reply"). In addition, the court ordered the production of the defendant's medical records from Central Treatment Facility ("CTF") where the defendant is detained (ECF No. 230), and those medical records (ECF No. 232 ) (under seal) have been reviewed by the court. Thereafter, defendant filed his Reply and requested an additional seven days within which to provide the court with an expert's report interpreting the medical records and risks associated with the defendant's medical conditions. Defendant has now provided that report to the court which contains the opinion of their expert in family medicine. (ECF No. 241-under seal)("Expert Report"). For the reasons stated below, the Motion (ECF No. 229) is denied.
A detention hearing was held in this case on July 8, 2019. After both parties were fully heard, I detailed my reasons for issuing a detention order on the record at the hearing and I issued an Order of Detention summarizing those reasons (ECF No. 109). Pursuant to 18 U.S.C. § 3142(f), a detention hearing may be reopened if the "judicial officer finds that information exists that was not known to the movant at the time of the [detention] hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community." Defendant argues that the COVID-19 Virus Pandemic constitutes changed circumstances warranting the defendant's release and, in particular, argues that the conditions of confinement at CTF (which is part of the D.C. Jail complex) are unsafe, that he is at an increased risk of contracting the virus, and the fact that he suffers from certain medical conditions increases his risk of complications should he contract the virus. Because concerns relating to the COVID-19 pandemic were not present at the time of the defendant's original detention hearing, the court agrees that § 3142(f) allows a reopening of the detention decision.
The Court "recognize[s] the unprecedented magnitude of the COVID-19 pandemic" and acknowledges that it can constitute new information warranting a reconsideration of a detention order. United States v. Martin, Crim. No. PWG-19-140-13, ECF No. 209 at 4 (D. Md. Mar. 17, 2020). Notwithstanding these circumstances, however, the decision whether to release an individual pending trial still requires an individualized assessment of the factors identified in the Bail Reform Act, 18 U.S.C. § 3142(g). Id. at 5. In that regard, I have reviewed the bases for my detention order, and I have reweighed the factors under the Bail Reform Act in light of the current public health emergency, the current COVID-19 situation at CTF where the defendant is being held, the defendant's existing medical condition, and the defendant's proposed conditions of release. The record in this case regarding the offenses charged and the defendant's background compel me to conclude that conditions of release cannot be fashioned to address community safety, notwithstanding the potential risk of exposure to the virus that the defendant faces while detained. The court fully analyzed the §3142(g) factors at defendant's detention hearing. As noted in the court's detention order, and detailed on the record at the hearing by both the government and the court, an analysis of these factors overwhelmingly supported a finding that detention was appropriate.
At the time of his detention hearing, the defendant was charged with narcotics and firearms offenses. Since the original detention hearing, the defendant has been charged with additional offenses, including murder, in a Second Superseding Indictment. The current charges include: 1) Count 1- Conspiracy to Distribute 28 grams of Crack, 200 grams of Heroin and Cocaine; 2) Count 2- Discharging a Firearm Resulting in Death during a Drug Trafficking Crime; 3) Count 3-Possession with Intent to Distribute Heroin and Cocaine; and 4) Count 4-Possession of a Firearm during a Drug Trafficking Crime. At the detention hearing, the government was entitled to a presumption in favor of detention pursuant to 18 U.S.C. §3142(e). The nature of the offenses charged, and the specific facts relating thereto, were extremely troubling to the court and formed a significant basis for the court's conclusion that the defendant presented a risk of safety to the community. Although the defendant was not yet charged with murder at the time of his detention hearing, the government's proffer included details of acts of violence by the defendant. The details of the offenses charged are set forth in the government's Opposition, but of note is the fact that the defendant was a long term and significant member of a violent narcotics organization. His alleged role in the offenses was substantial, as he was a key member of the organization and was responsible for distribution of large quantities of narcotics and multiple acts of violence in furtherance of the narcotics conspiracy. Notably, the defendant is charged with the murder of Victim J.D. on May 8, 2018, alleged to have been committed in retaliation for a series of robberies and other acts that were negatively affecting the defendant's drug business and his standing in the organization. Thereafter, on October 15, 2018, the defendant is alleged to have engaged in a gun battle with J.D.'s associates, who were attempting to retaliate for J.D.'s murder. The defendant allegedly fired his gun during this exchange and an unarmed individual was struck. (ECF No. 231 at 1-2).
The weight of the evidence against the defendant is overwhelming and is supported by wiretaps, undercover operations, and surveillance. In addition, there was a seizure from the defendant resulting from a search warrant obtained after wire intercepts revealed that the defendant was bringing his gun and drugs to the Subway restaurant where he worked in Baltimore City. A search of the defendant's backpack revealed a loaded HK P30L .40 caliber pistol as well as cash and quantities of cocaine, heroin, suboxone strips, Xanax pills, and an oxycodone pill. The gun seized from the defendant was later revealed to be a match to ballistics evidence recovered from the nonfatal shooting noted above. Further, the defendant made admissions regarding his involvement in the offenses. (ECF No. 231 at 1-3). Specifically, the government proffers that the defendant confessed to a confidential informant who was a regular drug customer of his about killing J.D. because J.D. and his friends had been robbing the defendant of his money and other property. As to the retaliatory shooting, the defendant admitted to law enforcement after his arrest that he was involved in the shooting. (Id. at 6). The court notes, as has the government, that the "seriousness of Antoine's offense cannot be understated." (Id. at 5). Although the defendant has a minimal record that is limited to a 2013 Rogue and Vagabond charge, his probation before judgment was closed as unsatisfactory. In addition, according to the government, the defendant is not responsive to typical deterrents in that, upon learning that his co-conspirators had been arrested, he continued his drug dealing, noting that their arrests would result in additional business for those who had not been arrested. (Id. at 7). . Based upon the above, the court concluded at the time of the detention hearing, by clear and convincing evidence pursuant to §3142, that there were no conditions of release which would reasonably assure the community's safety. (ECF No. 109).
The defendant does not reargue the factors originally relied upon by the court. Rather, the defendant focuses on the conditions at the D.C. Jail and his health condition which he argues puts him at greater risk of complications if he contracts the virus. As this court has previously noted, the public health emergency created by COVID-19 is a significant concern for all those in detention facilities during this global pandemic. The court is concerned for the defendant, and for all others both inside and outside of the detention facility. These concerns, however, do not constitute a basis upon which to release an individual who this court has determined poses a threat to the safety of the community unless the court concludes that the conditions at the detention facility coupled with the defendant's medical conditions warrant a reconsideration of that conclusion.
The court is well aware that the conditions at the D.C. Jail are currently the subject of active litigation and are detailed in opinions of Judge Kollar-Kotelly of the United States District Court for the District of Columbia, who has directed that certain remedial actions be taken at the facility. Banks v. Booth, Civ. No. CKK-20-849, 2020 WL 1914896 (D.D.C. Apr. 19, 2020) . As noted by the government, as a result of that judicial oversight, comprehensive enhanced measures and procedural reforms have been put in place at the D.C. Jail and Judge Kollar-Kotelly continues to oversee the facility's implementation of those procedures. (ECF No. 231 at 8-14). The government further observes that conditions there have demonstrably improved and the number of positive cases of COVID-19 has been significantly reduced. Indeed, according to the government's Opposition, as of June 18, 2020, the United States Marshals Service ("USMS") reported that no COVID-19 cases existed at the D.C. Jail. (Id. at 10). Given that the defendant questions the government's assertions regarding positive COVID-19 cases at the D.C. Jail, (ECF No. 238 at 4), the court inquired of the USMS as to the status of those cases. The USMS advised the undersigned that the General Counsel for the District of Columbia Department of Corrections ("DOC") advised that, as of July 6, 2020, there were no positive COVID-19 cases at DOC's correctional facilities, to include CTF where the defendant is detained. Further, DOC advised the USMS that, as of June 14, 2020, the only individuals in quarantine were new intakes arriving at DOC facilities who are quarantined for 14 days, in addition to testing, out of an abundance of caution. The court cannot conclude that the current conditions at the jail are so unsafe so as to constitute a basis for reconsideration of the defendant's detention order.
Nor is there any evidence of record that the defendant's medical condition is not being, or cannot be, adequately addressed at the D.C. Jail. Rather, the defendant's medical records clearly establish that the D.C. Jail has been attentive to the defendant's needs. The defendant had an acute medical episode in mid-May involving blood clots in his lungs, and the defendant was first admitted to the jail infirmary, but was shortly thereafter admitted to the Intensive Care Unit at an outside hospital. According to the defendant, he continues to suffer from a severe heart condition, chronic lung disease and other conditions. (ECF No 238 at 2). According to the defendant's Expert Report, the defendant is at high risk of developing COVID-19 because he is being held in a jail setting and he is at a very high risk of adverse consequences if he is exposed to the virus because he suffers from several medical conditions. (ECF No. 241). The court notes, however, that the Expert's Report does not address the conditions at the D.C. Jail specifically, but rather relies upon the expert's experience regarding conditions at detention facilities in general. The current conditions at the D.C. Jail are not consistent with the expert's observations. Further, although the expert notes that the defendant may need follow up appointments after his acute medical episode, the defendant does not assert that he is not receiving necessary medical treatment. While the court acknowledges that the defendant, as his expert notes, suffers from multiple conditions that place him at greater risk of serious complications if infected with the virus, that fact alone does not support a reconsideration of the defendant's detention order given the reasons supporting that order as detailed above. As noted by the government, this court has denied many release motions filed by defendants who suffer from significant health issues where those conditions did not warrant a reconsideration of a detention order. (ECF No. 231 at 1, App'x A).
Because the defendant's Expert Report, which details all of the defendant's medical conditions was filed under seal, the court will not further elaborate on the report or the details regarding defendant's medical conditions in this opinion, but notes that it has considered all of the conditions identified in the Expert Report. (ECF No. 241). --------
The court has also considered the defendant's proposed conditions of release (ECF No. 229 at 3) and notes that those proposed conditions of release are the very same type of conditions which were proposed, and rejected, at defendant's original hearing. Even the strictest of conditions of release to include a third party custodian (whether it is the defendant's cousin or mother), electronic monitoring and related conditions are wholly inadequate to ensure the safety of the community. The court concludes now, as it did at the defendant's detention hearing, by clear and convincing evidence, that there is no condition or combination of conditions which will reasonably assure the community's safety.
Defendant's Motion also contains an alternative request for the defendant's temporary release pursuant to 18 U.S.C. §3142(i) which allows for the temporary release of a defendant once a determination has been made that such release is necessary for the preparation of his defense. Defendant argues that his inability to meet with counsel in person and his limited opportunity to consult with counsel by phone has significantly curtailed his Sixth Amendment right to counsel. (ECF No. 220 at 10-11). Given the current posture of this case, the court cannot conclude that the defendant's temporary release is necessary for the preparation of his defense. The restrictions imposed at CTF regarding access to counsel are reasonable, necessary, and temporary and, notably, the defendant's trial has been rescheduled to July 12, 2021. (ECF No. 231 at 22). Given the trial date, defendant and his counsel have ample time within which to prepare a defense. And, as the court is aware, significant efforts and measures are being taken by the court and the United States Marshals Service so as to facilitate communications and meetings between counsel and their clients. In his Reply, defendant also invokes the alternative basis for release under §3142(i) which may be ordered for "another compelling reason" (ECF No. 238 at 1). The court notes that it has herein broadly employed the analysis suggested by the Fourth Circuit in United States v. Creek, No. 20-4251, Doc. 18 (4th Cir. Apr. 15, 2020) in considering COVID-19 based requests for temporary release under §3142(i), although the Creek order did not explicitly apply this analysis to other provisions of the Bail Reform Act. See United States v. Gallagher, SAG-19-479 (D. Md.), ECF No. 45 at 6-7. Specifically, the court has concluded that the defendant's medical conditions and the risk of contracting COVID-19 does not rise to the level of a "compelling reason" warranting the defendant's temporary release under 18 U.S.C. §3142(i).
In conclusion, the defendant has not presented any new information that warrants a reconsideration of my Order of Detention in accordance with 18 U.S.C. § 3142(f). Based upon the foregoing, the court concludes that the circumstances proffered by the defendant do not constitute a basis upon which to release an individual who the court has determined poses a threat to the safety of the community. Accordingly, Defendant's Motion (ECF No. 229) is denied. Date: 7/8/2020
/s/_________
Beth P. Gesner
Chief United States Magistrate Judge