Opinion
2:17-cr-00328
02-23-2021
UNITED STATES OF AMERICA, v. BRIAN POWELL, Defendant.
MEMORANDUM ORDER
Mark R. Hornak, Chief United States District Judge
AND NOW, this 23rd day of February, 2021, the Court issues the following Order: Before this Court is Defendant Brian Powell's Motion for Reconsideration of Motion for Release from Detention Pending Sentencing at ECF No. 2130. For the reasons below, the Defendant's Motion is GRANTED.
I. BACKGROUND
In November 2017, a Complaint was filed against Mr. Powell, and he was ordered temporarily detained. (ECF Nos. 1, 16.) In April 2018, a federal grand jury returned a superseding indictment against Mr. Powell and twenty-seven (27) other defendants. (ECF No. 135.) A Magistrate Judge held a detention hearing and ordered Mr. Powell detained pending trial. (ECF No. 566.) On December 2, 2019, Mr. Powell entered a guilty plea to Counts 1, 2, and 7 of the superseding indictment. (ECF No. 1372.) At the change of plea hearing, Mr. Powell made an oral Motion for release from detention pending sentencing and later submitted documents in support of that request. (See ECF Nos. 1376, 1410.) The Court denied Mr. Powell's Motion at that time. (ECF No. 1410.)
On January 20, 2021, Mr. Powell filed an Unopposed Motion for Reconsideration, asking the Court to reconsider Mr. Powell's request for release pending sentencing pursuant to 18 U.S.C. § 3145(c). (ECF No. 2130.) Specifically, Mr. Powell requests release to enable him to receive necessary mental health treatment. (Id. at 3.) The Government does not object to the request, provided that appropriate conditions of release are imposed, as recommended by the Probation Office. (Id. at 4.) The Court held a telephonic status conference on the Motion on January 25, 2021. (ECF No. 2133.)
II. DISCUSSION
Mr. Powell is detained pending sentencing pursuant to 18 U.S.C. § 3143(a)(2), which mandates detention if a defendant is convicted of an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act. A defendant subject to detention pursuant to § 3143(a)(2) and who meets the conditions of release set forth in § 3143(a)(1) may be ordered released, under appropriate conditions, “if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.” 18 U.S.C. § 3145(c). Under § 3143(a)(1), “a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence” shall 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.” 18 U.S.C. § 3143(a)(1). In deciding whether to grant release from detention pending sentencing, the Court is to consider both: (1) whether, pursuant to § 3143(a), Mr. Powell is likely to flee or pose a danger to the safety of any other person or the community if released; and (2) whether exceptional circumstances warrant his release under § 3145(c).
Under § 3143(a)(2), detention is mandatory unless (1) there is “a substantial likelihood that a motion for acquittal or new trial will be granted” or “the Government has recommended that no sentence of imprisonment be imposed” and (2) the Court “finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.”
Here, the Court stands by its prior assessment that Mr. Powell is “unlikely to pose a flight risk.” (See ECF No. 1410, at 2.) It appears to the Court that Mr. Powell has strong family ties and community support. The Court also finds it unlikely that Mr. Powell will pose a danger to the safety of others or the community. Mr. Powell does not have a significant criminal history, and he has had zero (0) incidents of misconduct while detained at the Allegheny County Jail (“ACJ”). (See ECF Nos. 1539, 2130-1.)
As to § 3145(c), when the Court previously denied Mr. Powell's Motion for Release, it was at that time “strained to find” exceptional reasons to warrant Mr. Powell's release. (ECF No. 1410, at 2.) Now, however, the Court finds that there are changed circumstances to warrant reconsideration of whether exceptional reasons exist to release Mr. Powell from detention pending sentencing.
Mr. Powell has been detained at the ACJ since November 2017. (See ECF No. 16; ECF No. 2130, at 1-2.) Mr. Powell reports that, since March 2020, the COVID-19 pandemic has caused severe restrictions on the counseling and mental health programming available to people detained at the ACJ. (ECF No. 2130, at 3.) While such limited access to programming has likely affected many defendants, in the Court's estimation, the restrictions have particularly impacted Mr. Powell, a U.S. Army veteran diagnosed with and suffering from post-traumatic stress syndrome (“PTSD”). (Id. at 2.) Before the pandemic hit, Mr. Powell had been “participating in various counseling and mental health programs” at the ACJ, including, since February 2018, “as an active member of the Veterans Service Pod.” (Id. at 3; see also ECF No. 2130-1.) In a letter attached as an exhibit to the Motion, Mr. Powell's inmate program administrator at the ACJ described a wide range of programming in which Mr. Powell had been involved, including “all Veteran related programs, ” adult education programs, Bible Studies, and restorative justice programs. (ECF No. 2130-1.) Such programming “afforded therapeutic benefits” for Mr. Powell's PTSD condition. (ECF No. 2130, at 3.) The Court takes those conditions afflicting Mr. Powell seriously, and does likewise as to the need for ongoing counseling and other treatment programming.
Since March 2020, however, the counseling and mental health programs that Mr. Powell has come to rely on have been severely limited or suspended. (ECF No. 2130, at 3.) According to Mr. Powell, the ten-month unavailability of such programs “has contributed significantly to a deterioration of his mental health.” (Id.) He requests release from detention so that he can again participate in and benefit from mental health services. (Id.) He proposes living with his wife and child in Jacksonville, Florida, where he contends mental health services are available to him. (Id.) He also states that he secured an employment position with Veterans Lighthouse Electric. (Id.) The Probation Office has approved and confirmed such matters. Based on the consideration of the entire record, including but not limited to Mr. Powell's prior record and the specifics of his offense conduct, the Court concludes that these matters, and the conditions noted below, are a “combination of conditions” that will secure Mr. Powell's attendance at any required Court proceedings, and will secure the safety of others and of the community.
The Court concludes that Mr. Powell's need for mental health treatment constitutes an exceptional reason for release from detention pending sentencing. In particular, the Court notes Mr. Powell's well-documented reliance on mental health treatment at the ACJ, the uncertainty of when such treatment may resume at the ACJ, and the fact that the Government does not oppose the Motion.
Further, the Probation Office has confirmed the safety and availability of Mr. Powell's proposed living circumstances. Upon release, Mr. Powell will reside with his wife at a location approved by the Probation Office. Mrs. Powell confirmed with Probation that she is willing to have Mr. Powell in her residence under any conditions imposed by the Court. A Pretrial Supervisor in the relevant District has also advised the Probation Office that the relevant office is willing to accept the supervision of the case. The Probation Office also confirmed Mr. Powell's stated fulltime employment opportunity, which the Court also finds to be appropriate.
III. CONCLUSION
The Defendant's Motion for Reconsideration at ECF No. 2130 is hereby GRANTED. The Court sets an unsecured bond of $50,000 and a requirement that Mr. Powell's wife execute the Conditions of Release as a third-party custodian with all of the reporting obligations attendant thereto. The Court will impose Conditions of Release, including Mr. Powell's living only at an approved residence, along with an unmonitored curfew requiring Mr. Powell to be at his approved residence between the hours of 9 pm and 6 am, unless deviation is approved in advance for work, healthcare purposes, or other critical or urgent necessities by the Probation Officer either in the supervising District or in this District. Court approval for such deviations as may be authorized by a supervising Officer is not required.
The Defendant shall be released from custody once he has fully executed the Bond and Conditions of Release and such are provided to the Court, and his third-party custodian has executed the relevant paperwork, and all such documents have been returned to the Probation Office or the Court as the case may be.