Opinion
CRIMINAL NO. PWG-15-141
06-29-2020
UNITED STATES OF AMERICA v. WILLIE J. BLAND, Defendant
UNDER SEAL
MEMORANDUM OPINION
The Court has received Defendant's Motion for Reconsideration of Covid-19 Release Motion & Supporting Memorandum of Law ("Defendant's Motion"), ECF No. 100. The Court has reviewed Defendant's Motion, the opposition, and the applicable law. No hearing is deemed necessary. Local Rules 105.6 and 207 (D. Md.). The Court hereby DENIES Defendant's Motion.
I. Relevant Procedural History
Defendant now seeks his third review of this Court's orders of detention following his arrest on February 7, 2020. Initially, Defendant consented to detention on February 11, 2020. ECF No. 84. Less than a month later, Defendant filed a motion for a detention hearing requesting release to the custody of a third-party custodian. ECF No. 89. Following a March 11, 2020 detention hearing, the Court denied Defendant's request and entered an order of detention. ECF No. 91. On April 8, 2020, Defendant sought another review of the Court's order of detention due to the outbreak of the Corona virus ("COVID-19"). ECF No. 92. On April 16, 2020, the Court, issued a Memorandum Opinion ("Previous Memorandum"), memorializing its reasons for denying Defendant's request. ECF No. 95.
For a review of the facts of this case, a detailed discussion is set forth in the Previous Memorandum. Id. The Court will not rehearse the factors under consideration by way of the Bail Reform Act but will instead rely on the previous findings.
The Court's review of Defendant's request will focus on: (1) whether there are novel facts previously unknown to the Court, which have a material bearing on 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; (2) whether Defendant provides a compelling reason necessitating the Court to permit his temporary release; and, (3) whether the D.C. Department of Corrections ("DOC") violated Defendant's Eighth Amendment rights.
II. Analysis
Defendant alleges that "health conditions makes [sic] 'temporary release from custody' compelling." Def.'s Mot. ¶ 8, ECF No. 100. Defendant contends that he suffers from "asthma (mild persistent) and other minor aliments" which "should lead the Court to conclude that [Defendant] is a person likely to get extremely sick or expire if he contracts [COVID-19]." Id. at ¶¶ 2, 8. Defendant avers that his release is also necessary because of his cellmate's positive diagnosis of COVID-19. Id. at ¶ 1. Defendant "recalls having direct contact with at least 4-5 people who eventually tested positive for the virus." Id. at ¶ 7. Further Defendant states that he has medical records which provide "tangible proof from the [DOC] medical unit which outlines [that Defendant] suffers from [a]sthma and other minor ailments." Id. at ¶ 2. Defendant contends that the charges he faces are "unproven conduct or unindicted conduct." Id. at ¶ 4. According to Defendant, he was subjected to "per se entrapment" because "[c]ommon sense leads one to believe that it was the undercover officer who suggested the spike for the larger purchase" whereas originally the drug purchases were for under 15 grams. Id. at ¶5A. Defendant also advances an Eighth Amendment argument and states that his health risks require temporary release from prison. Id. at ¶ 8. Lastly, Defendant contends that his cousin would serve as an ideal third-party custodian because his cousin is an unemployed traveling nurse who "will be home all day and able to supervise [Defendant] since real-time GPS is not available at this time due to the [p]andemic." Id. at ¶ 6.
The Government avers that "the only new information [Defendant] presents for the Court's consideration is the fact that his former cellmate was diagnosed with COVID-19 and the cellmate was released early." Gov't Opp'n. to Second Mot. for Recon. of Bond ("Gov't Opp'n"), ECF No. 103. The Government contends that Defendant's Motion should be denied because "the vast majority of [inmates who tested positive for COVID-19] have now recovered and returned to general population and the number of positive inmates has dramatically decreased . . . ." Id. at 3. Further, the Government states that the DOC has taken proper precautionary measures to mitigate the risk of the rapid spread of COVID-19. Id. at 6-14. Lastly, the Government argues that Defendant's individual circumstances do not merit release. Id. at 14.
Under the Bail Reform Act, a detention hearing determination:
[M]ay be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the 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.18 U.S.C. § 3142(f) (emphasis added). In addition, "[a] judicial officer may . . . permit the temporary release of the person, in the custody of a United States marshal or another appropriate person . . . for [a] compelling reason." 18 U.S.C. § 3142(i).
a. 18 U.S.C. § 3142(f) "Material Bearing" Inquiry
The presence of the COVID-19 creates a "material bearing" on the issue of whether there are conditions of release that can protect the community from the danger that Defendant presents. Yet, this Court has stated that the mere presence of the virus, even in the detention setting, does not automatically translate to the release of a person accused. See United States v. Deante Duckett, No. PWG-19-229 (D. Md. Apr. 17, 2020) (denying the defendant's motion even though he suffered from bacterial infections); United States v. Deion Chase, No. JKB-19-0473, 2020 WL 2319132 (D. Md. May 11, 2020) (denying the defendant's motion even though he suffered from high blood pressure); United States v. Jawuan Bolling, No. 19-cr-00506-RDB-6, 2020 WL 2395608 (D. Md. May 11, 2020) (denying the defendant's motion which relied upon the generalized risk of exposure and contraction of COVID-19); United States v. Darius Wilder, No. GJH-17-528, 2020 WL 2319136 (D. Md. May 11, 2020) (denying the defendant's motion even though he had a heart condition, polycystic kidney disease, stage 5 chronic kidney disease, and hypertension); United States v. Marshall, No. GJH-18-145, 2020 WL 2614817 (D. Md. May 22, 2020) (denying the defendant's motion when the defendant acknowledges that he has no underlying medical conditions that heighten his risk of developing serious complications if he should contract COVID-19); United States v. Attia, No. 19-cr-193-PWG, 2020 WL 2615725 (D. Md. May 22, 2020) (denying the defendant's motion even though she suffered from asthma); United States v. Fomukong, No. 17-cr-00661-PWG-1, 2020 WL 3073321 (D. Md. June 10, 2020) (denying the defendant's motion even though he nearly passed away from tuberculosis in 2010 and has been hospitalized for respiratory illnesses several times since then).
In the Previous Memorandum the Court stated:
Lastly, Defendant at no point provides medical records which substantiate his claims of asthma and seizures. There is no
indication that Defendant has been in contact with any detainees who have been diagnosed with the virus. It is not for the Court to speculate where the "fine line" might be crossed where the scales weigh more favorably toward release. But on this record, it has not been crossed.Previous Mem. 6. Defendant claims that the circumstances in this case have changed because his "cellmate at DC jail has been diagnosed with [COVID-19]." Def.'s Mot. ¶ 1. Defendant further claims that the circumstances have changed because "[a]t the time of [Defendant's] previous COVID-19 motion, [Defendant's] medical records were at medical clinics in New York and New Jersey and were not readily accessible to [Defendant]." Id. at ¶ 2. Further, Defendant states "[t]he now documented underlying medical conditions, which may have initially given the Court pause, is now clear and should lead the Court to conclude that this young man is a person likely to get extremely sick or expire if he contracts COVID-19." Def.'s Mot. ¶ 8. "[A]ttached are the tangible proof from the [DOC] medical unit which outlines [Defendant] suffers from [a]sthma and other minor ailments." Id. at ¶ 2.
Upon review of Defendant's medical records, there is nothing to suggest that Defendant is not receiving the proper treatment for his asthma. In fact, the DOC has provided Defendant with: Albuterol, Flovent, and Nasonex to treat his asthma. DOC Medical Records 1, ECF No. 102-1. See United States v. Wheeler, No. CCB 19-0455, 2020 WL 2085473, at *2 (D. Md. Apr. 30, 2020) ("There is nothing in [the defendant's medical records] that suggest Defendant did not receive appropriate care for his asthma and type I Diabetes.").
Again, the fact that an inmate has tested positive for COVID-19 or has been in contact with an inmate who has tested positive, does not automatically warrant release. See West, 2020 WL 1820095, at *1 (denying the defendant's motion despite testing positive for COVID-19). The Court, in the Previous Memorandum, merely stated that when weighing the factors under the Bail Reform Act with the evidence provided by Defendant, release was not warranted. The Court did not set forth a bright-line test stating that if an inmate has been in contact with another inmate who has tested positive, release is warranted. And it does not do so here.
In April of this year, after a review conducted by independent investigators, the Honorable Kollar-Kotelly of the Federal District Court for the District of Columbia, found that there was a likelihood of success on the merits of a claim that the conditions of confinement violated the United States Constitution by failing to adequately protect the detainees' health and safety. Banks v. Booth, No. 20-849(CKK), 2020 WL 1914896, at *6-11 (D.D.C. Apr. 11, 2020). According to the investigators, 65 out of approximately 1,020 inmates tested positive for COVID-19. Id. As later commented upon by the Honorable Theodore Chuang of this Court:
. . . [T]he D.C. Jail had failed to implement contact tracing when correctional staff tested positive; had been slow to respond to inmates displaying symptoms of COVID-19 such as fever and coughing; did not properly seal off quarantined inmates from the general population and require proper use of masks and gloves for those present in the quarantine unit; and left inmates in isolation for having tested positive in draconian conditions without access to showers or laundry services. It also found that D.C. Jail had acted slowly to, and had failed to, operationalize and enforce social distancing measures needed to avoid an unreasonable risk to the health of detainees, as illustrated in part by the fact that it allowed 40 inmates to congregate three weeks into the pandemic. The court also found that there were likely errors in the use of thermometers to screen income[ing] visitors and staff, and some housing units lacked sufficient cleaning supplies and sufficient guidance on how to sanitize that resulted in 'challenges with cleanliness' outside of inmates' cells. The court therefore concluded that the evidence supported the conclusion that D.C. Jail acted with deliberate indifference to inmate health and safety because it was aware of the risks of COVID-19 but 'disregarded those risks by failing to take comprehensive, timely, and proper steps to stem the spread of the virus.' Although the court did not order the immediate release or transfer of detainees, it ordered as a first step certain remedial actions, including that the D.C. Jail improve the triage process for suspected cases of COVID-19, provide proper cleaning supplies to each unit in the facility, and implement social distancing measures.United States v. Demetrius Keaton, TDC-18-215 (Apr. 23, 2020) (internal citations omitted). However, despite the disturbing information that came from the independent investigations, it is important to note that Judge Kollar-Kotelly declined to grant the plaintiff's request for immediate release from the DOC. Banks, 2020 WL 1914896, at *15. She instead implemented a detailed list of corrective measures to address the deficiencies in the DOC's COVID-19 response. Id. at *13-15. The ruling did not require the Court to release every inmate. Id. at 15.
According to the Government, there are currently no new COVID-19 cases at the DOC. Gov't Opp'n 3-4. "All DOC residents who previously tested positive for COVID-19 have been moved out of the isolation [units] and back into the general population in accordance with guidelines from the Center for Disease Control and there are no longer any units in quarantine." Id. at 4. The Court can confirm that as of June 17, 2020, this information was verified by the United States Marshals Service.
In this case, the Court found on two separate occasions that Defendant has failed to show by clear and convincing evidence he is not a danger to the community. ECF No. 91; Previous Mem. 7. The Court also found that Defendant's risk of flight is substantial. Previous Mem. 6. Specifically the Court found:
Defendant has failed to show that he is capable of following any rules set forth by the Court during normal times, let alone during a pandemic. Now, with the pandemonium that surrounds COVID-19 and Defendant facing further incarceration, the risk of Defendant violating conditions of release is heightened. Moreover, as of April 10, 2020, traditional electronic home monitoring which provides real-time information about Defendant's whereabouts is not available due to COVID-19. Hence, the Court not only lacks confidence Defendant will not flee, but also does not have the technology to track Defendant should he not comply with the conditions of release. Lastly, given the sheer quantity of narcotics Defendant has shown that he is capable of obtaining and distributing, Defendant poses a significant danger to the safety of the community.Previous Mem. 6-7. The Court finds that nothing on this third review of the Court's order of detention warrants a different outcome. For the first time in the three separate reviews of the Courts order of detention, Defendant has raised a per se entrapment argument in his motion. Def.'s Mot. ¶ 5A. At this juncture, it is not for this Court to decide whether Defendant has a valid defense of entrapment. This issue is reserved for later determination by the trial judge and/or the finder of facts.
Defendant proposes that he be released and have his cousin serve as a third-party custodian as an alternative to real-time GPS. Id. at ¶ 6. However, given Defendant's propensity to violate conditions set forth by the Court, the Court lacks confidence that Defendant upon release will adhere to any conditions set forth to guarantee the safety to the community or Defendant's appearance at future hearings.
Defendant is currently in this predicament because he allegedly violated fourteen terms of his supervised release. ECF No. 83.
Simply put, the Court continues to find Defendant a danger to society. As stated by Defendant himself, "[t]he nature and seriousness of the danger to any person or the community that would be posed by the person's release-clearly, [sic] no one can argue that drug dealing is inherently dangerous and a determinate to our community." Def.'s Mot. ¶ 9. The volume of drugs Defendant is allegedly able to obtain is startling, and the thought of its distribution to the members of this community is frightening. With the pandemonium that surrounds COVID-19 and Defendant facing a lengthy period of incarceration if convicted, the risk of Defendant violating conditions of release is heightened.
As such, when weighing the problems currently faced in the DOC against whether there are reasonable conditions that will assure the safety of the community and Defendant's appearance before the Court, the Court finds that release is not warranted.
b. 18 U.S.C. § 3142(i) "Compelling Reason" Inquiry
The United States Court of Appeals for the Fourth Circuit has said the district court, when reviewing a defendant's request for relief under 18 U.S.C. § 3142(i) based on the COVID-19 crisis, should consider:
[T]he severity of the risk that the COVID-19 virus poses to the defendant, given his existing medical conditions and the current COVID-19 situation at the facility where he is being held, and whether that risk, balanced against the other Bail Reform Act factors, rises to the level of a 'compelling reason' for temporary release under 18 U.S.C. § 3142(i).United States v. Creek, No. CCB-19-36, 2020 WL 2097692, at *1 (D. Md. May 1, 2020) (citing the Fourth Circuit's order of remand); Chase, 2020 WL 2319132, at *3. In considering relief under 18 U.S.C. § 3142(i) the Court considers:
(1) the original grounds for detention; (2) the specificity of a defendant's COVID-19 concerns; (3) the extent to which the proposed release plan is designed to mitigate or exacerbate other COVID-19 risks to the defendant; and, (4) the likelihood that a defendant's release would increase the COVID-19 risks to others.Chase, 2020 WL 2319132, at *3 (citing United States v. Green, No. JMC-19-539, 2020 WL 1446895, at *3 (D. Md. Apr. 15, 2020)).
First, the Court considers the original grounds for detention. As discussed above, Defendant was detained after allegedly violating thirteen terms of his supervised release. Among his violations, Defendant reportedly sold cocaine to an undercover officer on five separate occasions and attempted a sixth sale. Previous Mem. 6.
Next, the Court considers the specificity of Defendant's COVID-19 concerns. Defendant states that he suffers from asthma and other minor ailments. Def.'s Mot. ¶ 2. Although Defendant has provided medical documentation which corroborates his conditions, there is no evidence that Defendant is not currently receiving the proper treatment. Thus, without any information stating otherwise, the Court assumes that Defendant is receiving the proper care and prescriptions to treat his asthma.
The Court must now evaluate whether Defendant's release plan would mitigate or exacerbate Defendant's overall COVID-19 risks and the likelihood that Defendant's release would increase the COVID-19 risks to others. Defendant fails to address how his release plan will protect him from exposure to COVID-19 while not endangering the community. Defendant does however propose his cousin as a third-party custodian to demonstrate that he will not be a flight risk. Def.'s Mot. ¶ 6. It is true that Defendant may expose his cousin and possibly whoever drives him home from the DOC to COVID-19. This may also be an issue if Defendant's cousin secures employment shortly after Defendant returns home, but, all in all, with the availability of testing, if Defendant abided by his conditions of release, as well as the state and local health guidelines, his overall plan could minimize the risk he would expose himself and others to COVID-19. Unfortunately, Defendant has shown from his past history that he struggles to abide by any conditions set by the Court. Given this history, the Court is not confident that Defendant would adhere to the conditions of his release or take the necessary precautionary measures to assure that he does not expose himself or others to COVID-19. See Chase, 2020 WL 2319132, at *6 (stating that the Court was skeptical a defendant would abide by conditions of release given the history of noncompliance).
This is apparent in Defendant's failure to abide by the terms of his supervised release, ECF No. 71, and alleged failure to abide by the terms of his supervised release. ECF No. 83.
c. Eighth Amendment Deliberate Indifference Standard
Without applying any facts of this case, Defendant, in only one paragraph, raises an Eighth Amendment argument. Def.'s Mot. ¶ 8. The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments," such as those involving the "unnecessary and wanton infliction of pain." Gardner v. United States, 184 F. Supp. 3d 175, 180 (D. Md. May 4, 2016) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). "Deliberate indifference to serious medical needs of prisoners constitutes the wanton infliction of pain . . . ." Id. "To constitute deliberate indifference to a serious medical need, 'the treatment a prisoner receives must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable, to fundamental fairness.'" Id. "In other words, the official must evince a mens rea equivalent to criminal recklessness— he must 'both be aware of facts from which the indifference could be drawn that a substantial risk of harm exists, and he must also draw the inference.'" Id. at 181. Further, "[t]he rights of pre-trial detainees are different than the rights of post-conviction detainees. Because pre-trial detainees are presumed innocent, they are 'entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.'" Banks, (CKK-20-849) at 10.
In this case, Defendant merely recites that his health conditions place him at high risk of sickness or death, therefore, constitute a compelling reason for temporary release. Def.'s Mot. ¶ 8. Although the Court empathizes with Defendant' grim outlook, Defendant fails to provide evidence that the DOC acted with deliberate indifference in treating Defendant. Defendant generally discusses his conditions and his possible contact with inmates who have tested positive for COVID-19, but he does not discuss any deliberate indifference the DOC has shown him. Defendant also fails to address in his Eighth Amendment argument how the DOC's actions are excessive as to "shock the conscience." Until Defendant provides further evidence, the Court cannot find that Defendant's Eighth Amendment right has been violated.
The Court acknowledges the tragic effects of the COVID-19 outbreak in our communities and in the detention centers. However, as stated, the outbreak itself does not constitute a "compelling reason" for release. Defendant failed to show that the effects of COVID-19 in the DOC, balanced against the risk of flight or possible danger to society, rises to the level of a "compelling reason" to warrant temporary release.
III. Conclusion
Defendant has not demonstrated that the changed circumstances created by the COVID-19 crisis sufficiently tips the scales of detention to reverse the earlier two decisions by the Court. Accordingly, Defendant's Motion is denied. June 29, 2020
/s/_________
Charles B. Day
United States Magistrate Judge CBD/hjd