Opinion
1:18-CR-00126 EAW
2020-03-30
UNITED STATES of America, v. Deonte COOPER a/k/a Terry, Defendant.
Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for Plaintiff. Anthony L. Pendergrass, Law Office of Anthony L. Pendergrass, Samuel P. Davis, Dolce Panepinto PC, Thearthur A. Duncan, Law Office of Thearthur A. Duncan, Buffalo, NY, for Defendant.
Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for Plaintiff.
Anthony L. Pendergrass, Law Office of Anthony L. Pendergrass, Samuel P. Davis, Dolce Panepinto PC, Thearthur A. Duncan, Law Office of Thearthur A. Duncan, Buffalo, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge Defendant Deonte Cooper a/k/a Terry ("Defendant") was charged by Second Superseding Indictment with one count of conspiracy to commit firearms offenses in violation of 18 U.S.C. § 371. (Dkt. 246). He, along with co-defendant Titus Thompson, went to trial commencing on February 24, 2020. (Dkt. 283). On March 13, 2020, the jury returned its verdict, finding Defendant guilty on the sole count with which he was charged. (Dkt. 334). Defendant faces a maximum possible incarceration sentence of 5 years.
At the time of the jury's verdict, this Court, on the Government's motion, remanded Defendant into United States Marshal Service custody pending sentencing, which was scheduled for June 23, 2020. (Dkt. 320). Defendant now brings a motion (Dkt. 328) to be released on conditions based on the national emergency and worldwide pandemic caused by the Coronavirus Disease-2019 ("COVID-19"). The Government opposes Defendant's motion. (Dkt. 337). Likewise, in a memorandum submitted to the Court on March 26, 2020, and copied to all counsel, the United States Probation Office ("USPO") communicated its opposition to the motion.
According to the World Health Organization's website, as of the morning of March 30, 2020, there were 638,146 confirmed cases of COVID-19 worldwide, with 30,039 confirmed deaths and 203 countries impacted. See Coronavirus Disease (COVID-19) Pandemic , World Health Org., https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited Mar. 30, 2020). According to reports in the New York Times , as of the morning of March 30, 2020, the U.S. tallies include at least 141,995 people across every state, plus Washington, D.C., and four U.S. territories, who have tested positive for the virus and at least 2,486 patients with the virus who have died. See Jin Wu, et al., Coronavirus Map: Tracking the Global Outbreak , N.Y. Times, https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html (last visited Mar. 30, 2020). These numbers likely do not capture the full impact of the disease because of the lack of adequate testing. See generally Caitlin Dewey, Sick, Undiagnosed and Anxious: Most People with Covid-19 Symptoms Can't Get Tested , Buffalo News (Mar. 29, 2020), https://buffalonews.com/2020/03/29/shift-in-covid-19-testing-priorities-leaves-some-residents-sick-undiagnosed-and-anxious/.
Defendant's custody is governed by the Bail Reform Act, and more specifically 18 U.S.C. § 3143(a)(1), which provides in relevant part that a defendant:
who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c).
Once convicted, a defendant bears the burden of proof to establish his entitlement to bail. United States v. Harris , 192 F. Supp. 3d 337, 346-47 (W.D.N.Y. 2016). In other words, in order to establish his entitlement to release, Defendant must demonstrate by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or the community. With the exception of the COVID-19 pandemic, all of the arguments advanced by Defendant—concerning his alleged compliance with pretrial release, his maintenance of two jobs while under pretrial supervision, his lack of a criminal record, and the potential sentence he faces—were raised at the time the jury returned its verdict, and rejected by the Court. For the same reasons that the Court rejected Defendant's arguments at the time he was remanded, it continues to find that those arguments do not justify his release pending sentencing.
Defendant contends that he will be seeking a probationary term at the time of sentencing. (Dkt. 328 at ¶ 7). However, while a Presentence Investigation Report has not yet been prepared, the Government contends that Defendant's recommended sentence under the Sentencing Guidelines will likely exceed the statutory maximum sentence of 60 months. (Dkt. 337 at 3-4). The Government presented proof at trial that Defendant was a heroin dealer, who recruited some of his customers to become straw purchasers of firearms in Ohio for Robert Williams, Jr., who then transported those firearms to Buffalo, New York, where the firearms were sold and ultimately discovered at various crime scenes throughout the city.
As the USPO points out in its March 26, 2020, memorandum, Defendant's representation that he was compliant with his conditions of pretrial supervision is inaccurate. A violation report was submitted by USPO on or about July 15, 2019, alleging that Defendant violated the terms and conditions of his pretrial release, including failing to appear for pending state court cases related to drug trafficking and a violation of an Order of Protection, and United States Magistrate Judge Schroeder issued a warrant for Defendant's arrest. (See Dkt. 101; July 25, 2019 Minute Entry). Judge Schroeder agreed to allow Defendant to remain on pretrial release, but the terms and conditions of his release were amended to include home detention with G.P.S. location monitoring. (Dkt. 111; see Aug. 12, 2019 Minute Entry). Moreover, according to the USPO, Defendant violated his location monitoring condition on several occasions, and he also failed to report for drug testing as required. In fact, at the commencement of jury selection in this case on February 24, 2020, Defendant was more than an hour late for the start of the proceedings, necessitating the Court to admonish Defendant that if he was late again, he risked being taken into custody.
Moreover, while Defendant's Criminal History Category will likely be calculated as a level I, the Pretrial Services Report prepared at the time of Defendant's arrest reflects a history of arrests for marijuana possession and domestic violence issues. On December 20, 2019, in Ashtabula County Court, in Ohio, Defendant pleaded guilty to one count of aggravated trafficking in drugs in violation of Ohio Revised Code § 2925.03(A)(1)(C)(1)(a), a felony in the fourth degree. (Dkt. 337 at 1). That Ohio case is based on the contraband (fentanyl and a stolen firearm) discovered in Defendant's home during execution of a search warrant related to this case. (Id. ).
With respect to Defendant's new argument based on the COVID-19 pandemic, Defendant's counsel contends: "It is highly likely that Mr. Cooper could be infected with the coronavirus and even possibly die as a result of his incarceration." (Dkt. 328 at ¶ 10). However, Defendant does not raise any issue specific to him and his medical status. Defendant is 24 years old and according to the Pretrial Services Report, he is generally in good physical health.
The Government cites to various preventative measures undertaken by the facility where Defendant is currently housed. (Dkt. 337 at 7-8). On the other hand, Defendant's counsel cites to a communication with another unidentified client housed in the same facility, who contends that "several prisoners may have already been infected with the virus and they are being quarantined in other locations of the jail." (Dkt. 328 at ¶ 11). The reality is that jail settings present unique challenges in preventing the spread of infectious diseases. See generally Brown v. Plata , 563 U.S. 493, 519-20, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011) (describing overcrowded California prison system as "breeding grounds for disease"). Those challenges appear particularly acute when dealing with COVID-19. As United States District Judge Paul W. Grimm aptly explained in United States v. Martin , PWG-19-140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) :
With no known effective treatment, and vaccines months (or more) away, public health officials have been left to urge the public to practice "social distancing," frequent (and thorough) hand washing, and avoidance of close contact with others (in increasingly more restrictive terms)—all of which are extremely difficult to implement in a detention facility.
However, this pandemic does not justify ignoring the provisions of the Bail Reform Act. As explained by another district judge in this District: "As serious as it is, the outbreak of COVID-19 simply does not override the statutory detention provisions.... In the absence of evidence demonstrating a change in circumstances concerning [the defendant's] status as a flight risk and danger to another person or the community, detention pending sentence must be maintained." United States v. Rollins , 19-CR-34S, 11-CR-251S, 2020 WL 1482323, at *2 (W.D.N.Y. Mar. 27, 2020).
The same conclusion is mandated here. Defendant has not established by clear and convincing evidence that he is not a flight risk or danger, and accordingly, his motion for release (Dkt. 328) is denied.
SO ORDERED.