Opinion
2:17-cr-00180
02-04-2021
UNITED STATES OF AMERICA, v. SHAWN HENDRIX, Defendant.
MEMORANDUM ORDER
Mark R. Hornak, Chief United States District Judge
AND NOW, this 4th day of February, 2021, the Court hereby issues the following Order: Counsel for the Defendant submitted a Motion for Pretrial Release pursuant to 18 U.S.C. § 3142(i) at ECF No. 1090. For the reasons that follow, the Defendant's Motion is DENIED without prejudice.
I. BACKGROUND
Mr. Hendrix is charged at Count I of the Superseding Indictment with conspiracy to distribute 400 grams or more of fentanyl and a quantity of heroin in violation of 21 U.S.C. § 846 and at Count VII with possession with intent to distribute 40 grams or more of fentanyl in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. (ECF No. 445.) He has been detained at the Butler County Prison (“BCP”) since he was first arrested for these charges on July 12, 2017. (See ECF Nos. 34, 38.) Mr. Hendrix waived his detention hearing. (ECF No. 98.)
Counsel for Mr. Hendrix filed a Motion for Bond on November 25, 2020, seeking temporary release pursuant to 18 U.S.C. § 3142(i). (ECF No. 1090.) The Motion was supplemented by medical records filed under seal. (ECF No. 1092.) The basis of the Motion is that Mr. Hendrix's “obesity and high blood pressure place him at an increased risk for severe illness” from COVID-19 and that Mr. Hendrix is “detained in a facility already experiencing an outbreak of that virus.” (ECF No. 1090, at 5.) The Motion further contends that sufficient conditions of release can be imposed to reduce any concerns the Court might have about Mr. Hendrix's potential risk of flight or danger to others or to the community. (Id. at 4.) At the Court's request, counsel for Mr. Hendrix later filed a Notice on the docket informing the Court of the proposed custodian, or “appropriate person” to which Mr. Hendrix would be released, should the Court grant the Motion. (See ECF Nos. 1104, 1105.)
The Government opposes temporary release, arguing that concerns related to COVID-19 are not a compelling reason for release in this case. (ECF No. 1097.) In response to Mr. Hendrix's concerns about contracting COVID-19 while incarcerated, the Government laid out the “significant measures” the BCP is taking to limit the spread of the virus and the risk of possible exposure. (Id. at 4-5.) In light of these measures, the Government argues that Mr. Hendrix's health conditions are not a compelling reason for release, noting that among other things, Mr. Hendrix has failed to attend recent blood pressure screening tests. (Id. at 6-7.) The Government also argues that Mr. Hendrix poses a danger to others and to the community and is a flight risk. (Id. at 3, 8-9.)
The Court held a bond hearing on the Motion on January 22, 2021. (See ECF No. 1112.) The case is ripe for disposition.
II. DISCUSSION
Under 18 U.S.C. § 3142(i), the Court may “permit the temporary release” of a defendant, “in the custody of a United States marshal or another appropriate person, to the extent that [the Court] determines such release to be necessary for preparation of the person's defense or another compelling reason.” The burden rests with the defendant to show that § 3142(i) permits his temporary release. United States v. Wilburn, No. 18-115, 2020 WL 1899146, at *2 (W.D. Pa. Apr. 17, 2020). “And to meet this burden, the defendant should present an individualized argument why temporary release is appropriate; generalized or speculative arguments are insufficient.” Id.; see also United States v. Lee, 451 F.Supp.3d 1, 9 (D.D.C. 2020). “There is no ‘one-size-fits-all, blanket approach' to resolving” the question of temporary release under § 3142(i). See United States v. Carter, No. 18-561-1, 2020 WL 3412571, at *5 (E.D. Pa. June 22, 2020) (citation omitted).
When the Court considers what constitutes a “compelling reason” for temporary release, it does so against the backdrop of the Bail Reform Act as a whole. See Wilburn, 2020 WL 1899146, at *4. “And if there is anything that permeates the Bail Reform Act, it is Congress's intent that courts consider the defendant's dangerousness and risk of flight when making detention determinations.” See id. The defendant's danger to the community and risk of flight must therefore “play a meaningful role” in the Court's decision as to whether a “compelling reason” exists to justify temporary release under § 3142(i). See id.
Here, Mr. Hendrix argues that temporary release is appropriate because of his obesity and hypertension in the context of the COVID-19 pandemic. (ECF No. 1090, at 2.) According to the Centers for Disease Control and Prevention, adults with obesity-defined as a body mass index (“BMI”) above thirty (30)-“are at an increased risk” of severe illness from COVID-19. See People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention (last updated Feb. 1, 2021), https://bit.ly/2CrTAqa. And people with hypertension “might be at an increased risk” for severe illness from COVID-19. See id. The medical records submitted to the Court show that Mr. Hendrix is obese, with his most recent BMI recorded as 33.9. (ECF No. 1092, at 3.) The records also indicate that Mr. Hendrix has high blood pressure and that he is prescribed two (2) medications for hypertension. (ECF No. 1092, at 4.) Yet, as the Government points out, the medical records also establish that Mr. Hendrix rather regularly refuses blood pressure screening tests. (See ECF No. 1097, at 7; ECF No. 1092, at 1-2.) According to the medical records, Mr. Hendrix refused a blood pressure check at least six (6) times in less than three (3) weeks. (ECF No. 1092, at 1, 3.) At the bond hearing, Mr. Hendrix admitted this, explaining to the Court that he refuses the blood pressure tests because they are conducted “too early” in the morning.
At the hearing, Mr. Hendrix also raised concerns about the spread of COVID-19 in the BCP. Mr. Hendrix testified that it was his understanding that there had been a recent outbreak among the BCP staff and that the BCP does not test any inmates for the virus. Counsel for the Government, relying on information from the United States Marshals Services, responded to these allegations and explained some of the precautions the BCP has taken to prevent the spread of the virus. According to the Government, over time and as of January 21, 2021, five (5) inmates at that facility had tested positive and twenty-five (25) staff at that facility had tested positive. The Government explained that the BCP's testing protocol is to test any inmate or staff that shows symptoms. As another way to reduce the risk of spread, the BCP has required quarantine periods at different points during the pandemic. Further, the staff are in the process of getting vaccinated against COVID-19; as of, January 22, 2021, thirty-eight (38) staff had already been vaccinated. In the Government's response to Mr. Hendrix's Motion, the Government also listed additional steps the BCP has taken to deal with the COVID-19 crisis, including reducing congregation throughout the facility and increasing the cleaning of high-touch areas. (ECF No. 1097, at 4-5.)
Mr. Hendrix primarily relies on two (2) cases to support his Motion: United States v. Mahan, 454 F.Supp.3d 939 (D. Idaho 2020) and United States v. Le, 457 F.Supp.3d 6 (D. Mass. 2020). The Court does not find either case persuasive as both cases involve generalized arguments about the risk of COVID-19. See Mahan, 454 F.Supp.3d at 942-44 (granting temporary release for defendant with asthma based on the “possible” future spread of COVID-19 in the facility); Le, 457 F.Supp.3d at 8 (granting temporary release for defendant who did not have “any physical conditions that put him at high risk if he contract[ed] the virus”). But as this Court has previously explained, “generalized or speculative arguments are insufficient.” Wilburn, 2020 WL 1899146, at *2. Indeed, “[w]ith near uniformity, courts have declined to accept . . . generalized arguments.” Id. at *6. As such, the Court will assess the individualized arguments that Mr. Hendrix has put forth in his Motion and at the hearing to determine if temporary release is appropriate.
In addition, Le is significantly distinguishable from this case because the defendant in that case did not have any criminal record and the court was not concerned with the defendant's dangerousness. See Le, 457 F.Supp.3d at 9. As discussed below, that is not the case here.
Here, the record does not reveal an individual medical condition of substantial seriousness so as to warrant temporary release no matter Mr. Hendrix's risk of flight or dangerousness to the community. While it appears that Mr. Hendrix has hypertension and obesity, these conditions are not enough by themselves to establish a compelling reason for release based on the evidence before the Court. Mr. Hendrix makes no argument that he is receiving inadequate medical treatment at the BCP. Nor could he, based on the medical records and his own testimony, in which he told the Court that he receives medicine for his hypertension twice daily. The BCP staff have also attempted to monitor Mr. Hendrix's blood pressure through regular screening tests. Mr. Hendrix's “lack of current engagement in or compliance with” blood pressure testing, “diminishes the weight” that such condition should be accorded. See Wilburn, 2020 WL 1899146, at *4. And apart from obesity and hypertension, Mr. Hendrix does not have any other medical or health problems. (See ECF No. 1092, at 5.) Generally, it also appears that the BCP has taken, and continues to take, reasonable and evolving steps to mitigate the risk of spread within the facility. Further, Mr. Hendrix's concerns about a complete lack of testing and an uncontrolled outbreak in the facility are not reflected in the evidentiary record.
Also centrally relevant to this Motion is whether Mr. Hendrix poses a risk of flight or a danger to the community. The Court finds that both are the case. The Court first notes that this is a rebuttable presumption case; because there is probable cause to believe that Mr. Hendrix committed an offense for which a maximum term of imprisonment of ten (10) years or more is prescribed in the Controlled Substances Act, there is a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of Mr. Hendrix and the safety of the community. (See ECF Nos. 37, 98; 18 U.S.C. § 3142(e).) In terms of the issue of flight risk, this also means that Mr. Hendrix is facing a lengthy sentence if convicted. The Government also argues that the allegations against Mr. Hendrix, in terms of the alleged amounts of drugs involved and Mr. Hendrix's alleged leadership role in the conspiracy, would call for a possible sentencing range of decades in prison if convicted. (ECF No. 1097, at 3.) The Court emphasizes that Mr. Hendrix carries with him the presumption of innocence. But the possible length of Mr. Hendrix's sentence is nonetheless relevant to the Court's flight-risk assessment.
Beyond that, Mr. Hendrix's history of criminal offenses and supervision violations are significant to the Court's determination of Mr. Hendrix's dangerousness. Mr. Hendrix's criminal history includes various drug convictions and four (4) prior firearm convictions, including one in this Court. (See Pretrial Services Report.) Notably, Mr. Hendrix appears to have also violated conditions of supervised release in the past. In fact, he was arrested in the instant case while serving a term of federal supervised release as part of his sentence for his most recent firearm conviction. (Id.) The arrest triggered a no-bond warrant in that case, and revocation proceedings are pending before another member of this Court. (Id.) In other words, even if the Court were to grant Mr. Hendrix's Motion, he would remain detained by another federal judge's Order. (See id.) Put together, Mr. Hendrix's criminal history and his alleged non-compliance with supervised release conditions lead the Court to conclude that Mr. Hendrix's proposed release poses a substantial risk of danger to others and to the community.
In sum, the Court concludes that Mr. Hendrix's COVID-19-related health concerns, particularly when considered in conjunction with the potentially lengthy sentence he faces and his criminal conviction history, do not constitute a “compelling reason” to justify temporary release under § 3142(i). Because the Court reaches this conclusion, it will not assess whether the proposed custodian constitutes an “appropriate person” under § 3142(i).
III. CONCLUSION
The Court takes seriously Mr. Hendrix's health concerns during the COVID-19 pandemic. But the Court must also consider his danger to others and to the community and risk of flight attendant to any temporary release. Considering the complete context of this matter, the Court concludes that Mr. Hendrix has not met his burden to establish that temporary release is appropriate. Accordingly, Mr. Hendrix's Motion for Pretrial Release (ECF No. 1090) is DENIED without prejudice.