United States v. Bond

456 F.Supp.3d 1053

UNITED STATES of America, Plaintiff,

v.Jantzen L. BOND, Defendant.

Case No. 18-cr-159-pp

United States District Court, E.D. Wisconsin.

Signed April 24, 2020

Benjamin A. Wesson, United States Department of Justice (ED-WI) Office of the US Attorney, Milwaukee, WI, for Plaintiff.

Susan M. Roth, Kohn & Smith Law Offices, Milwaukee, WI, for Defendant.

ORDER DENYING MOTION FOR RELEASE PENDING SENTENCING (DKT. NO. 50 )

PAMELA PEPPER, Chief United States District Judge

Background

On July 17, 2018, the defendant was temporarily detained after being arrested on a criminal complaint; the defendant reserved bond arguments for a later date. Dkt. Nos. 2, 7. The bond study prepared at the time indicated that the defendant was twenty-eight years old, lived with his girlfriend and their daughter in Milwaukee and had never held stable employment. Dkt. No. 8 at 1-2. The report reflected that the defendant was in good physical health. Id. at 3. The defendant had prior convictions for possession of marijuana with intent to distribute (99CF1128); operating with a suspended license (16TR2689); possession of heroin with intent to deliver, use of a dangerous weapon (second or subsequent), felon-in-possession, possession of marijuana with intent to deliver and maintaining a drug house (17CF4497); and possession of heroin, cocaine and marijuana with intent to deliver and bail jumping (18CF868). Id. at 4-5. In the 2017 case, the defendant received three Justice Point violations and was admonished twice by the court. Id. The defendant was on supervision for the 2017 and 2018 cases when he was arrested on this offense. Probation recommended detention. Id. at 506.

The grand jury returned a seven-count indictment on July 24, 2018. Dkt. No. 9. It charged the defendant with two counts of possession of heroin with intent to distribute, one count of possession of cocaine with intent to distribute, two counts of possessing a firearm during and in relation to a drug offense and two counts of being a felon in possession of a firearm, based on events that occurred on September 25, 2017, February 17, 2018 and July 16, 2018. Id.

On November 18, 2018, the defendant asked the court to consider granting him bond. Dkt. No. 20. His mother and aunt had agreed to post their home as bond. Id. at 1. The defendant also agreed to submit to electronic monitoring and home confinement. Id. at 2. At the November 16, 2018 hearing on the motion, Judge Duffin concluded that due to the defendant's lack of lawful employment, failure to comply with release conditions in state cases and the nature of the offense, there was no condition or combination of conditions that would ensure the safety of the community, and denied the request for release. Dkt. No. 21. On Jun 28, 2019, the defendant asked this court to review Judge Duffin's detention order. Dkt. No. 31. This court reviewed Judge Duffin's order and denied the request for release without a hearing.

Dkt. No. 32. The court cited the fact that the defendant faced four charges that carried mandatory minimum sentences of five years each, the defendant's possession of handguns on two of the three dates charged in the indictment, the evidence presented by the government, the fact that the defendant committed offenses while on release for similar offenses, the fact that the defendant posted substantial cash bond in the state cases yet still committed the federal offenses and the defendant's lack of any legal employment in concluding that the defendant posed a danger to the community. Id. at 4-8.

On December 6, 2019, the parties filed an executed plea agreement, in which the defendant agreed to plead guilty to one count of possession of heroin with intent to deliver and one count of possessing a firearm in furtherance of a drug trafficking offense. Dkt. No. 41. At the end of the plea agreement is a two-page summary of the factual basis for the plea. Id. at 14-15. The agreement indicates that the drug weight for which the defendant is responsible is at least 400 but less than 700 grams of heroin, at least 500 grams but less than two kilograms of cocaine, at least 16.8 grams but less than 22.4 grams of crack and at least one kilogram but less than 2.5 kilograms of marijuana—a total of at least 1,000 kilograms but less than 3,000 kilograms of marijuana in converted drug weight. Id. at ¶17. The agreement indicates that the defendant faces a mandatory minimum sentence of five years on the drug count and a mandatory minimum sentence of five years on the gun count, which the court must impose to run consecutively to the sentence on the drug count; in other words, the defendant will serve at least ten years as a result of the plea. Id. at ¶6. The government has agreed to recommend a sentence within the applicable guideline range. Id. at ¶23.

COVID-19 Crisis

As of December 6, 2019, the day the parties filed the plea agreement, the COVID-19 crisis had not hit the United States. As of the writing of this order, there are 5,052 confirmed cases in Wisconsin and there have been 257 deaths. https://www.dhs.wisconsin.gov/covid-19/index.htm. There have been confirmed cases and a death in the Milwaukee County House of Corrections, confirmed cases in local jails, and confirmed cases in Bureau of Prisons facilities. Local jails are limiting bookings and releasing defendants on work release. Municipalities, counties and states across the country are working to reduce the number of individuals confined in jails and prisons by releasing people with limited time left on their sentences, or low-level offenders or people charged with non-violent offenses. See, e.g., https://www.prisonpolicy.org/virus/virusresponse.html. The Bureau of Prisons has suspended most inmate movement except in certain circumstances and with a few exceptions. https://www.bop.gov/coronavirus/covid19_status.jsp.

Federal courts are being asked to review detention orders in light of the public health crisis, and the known risks to jail and prison populations given the difficulty of social distancing and the increased likelihood that people in jails and prisons will have health issues that render them more vulnerable to the virus and to becoming more ill if they become infected. As the court has noted in another case, a quick Westlaw search reveals that in two days—March 30 and 31, 2020—there were at least fifteen decisions posted from courts across the country involving requests for review of bond, delay of surrender to serve sentences and contested detention hearings, all referencing the COVID-19 crisis.

United States v. Kintea McKenzie, No. 18 Cr. 834, 450 F.Suppp,3d 449 (S.D.N.Y. March 30, 2020) (ordering temporary release under 18 U.S.C. § 3145(c) of sentenced defendant on a charge of assault with a dangerous weapon; defendant had been released on bond under strict conditions such as GPS monitoring before self-surrendering to the MCC, inmates at the MCC had been diagnosed with COVID-19 and the MCC had classified inmate as "high risk" due to his asthma ); United States v. Fiumara, No. 15-94, 2020 WL 1540486 (W.D. Penn. March 30, 2020) (denying motion to lift "no bond" order for defendant who was involved in thirty-month drug conspiracy while on supervision, faced a mandatory minimum sentence of ten years, did not articulate any unique susceptibility to COVID-19 and did not convince the court that she did not pose a danger to the community); United States v. Smoot, No. 19-CR-20, 2020 WL 1501810 (S.D. Ohio March 30, 2020) (declining to release pretrial detainee under 18 U.S.C. §§ 3145(b) and 3142(i) charged with being a felon in possession of a firearm who had extensive criminal history, did not identify an outbreak at his facility and submitted no proof that his alleged respiratory conditions were not being managed at his facility); United States v. Lee, No. 19-cr-20112-03, 2020 WL 1540207 (E.D. Mich. March 30, 2020) (denying release of pretrial detainee charged in a crack conspiracy on the ground that the COVID-19 pandemic alone is not a sufficient basis to justify release; court still must consider 18 U.S.C. § 3142(g) factors); United States v. Winchester, No. 18CR301-1, 335 F.R.D. 82(M.D. North Carolina March 30, 2020) (declining to release detainee charged with possession of a firearm with obliterated serial number and awaiting sentencing on revocation of supervised release who argued that being incarcerated placed him at greater risk for COVID-19 infection); United States v. Oliver, No. JKB-16-0485, 2020 WL 1505899 (D. Maryland March 30, 2020) (denying motion of defendant sentenced in a racketeering conspiracy to serve the remainder of her sentence on home confinement rather than a halfway house on the basis of the COVID-19 pandemic; defendant had not exhausted remedies and Bureau of Prisons could place her in home confinement); United States v. Williams, No. JKB-15-0646, 2020 WL 1506222 (D. Maryland March 30, 2020) (same as Oliver ); United States v. Beamon, Nos. 19-570, 20-040, 2020 WL 1540511 (D. Maryland March 30, 2020) (declining to vacate detention order for pretrial detainee who had been denied release twice before and who relied solely on the COVID-19 pandemic as the basis for release); United States v. Lee, No. 19-cr-298, 2020 WL 1541049 (D.D.C. March 30, 2020) (denying motion of pretrial detainee charged with being a felon in possession of firearms on basis that COVID-19 crisis did not alter analysis under § 3142 ); United States v. Davis, No. ELH-20-09, 449 F.Supp.3d 532 (D. Maryland March 30, 2020) (granting pretrial release to pretrial detainee charged with possession of crack and fentanyl where defendant reported having bronchitis, was in a facility in which five inmates had tested positive for the virus, had no prior criminal convictions and no history of violence and release conditions included location monitoring); United States v. Nkanga Nkanga, No. 18-CR-713, 450 F.Supp.3d 491 (S.D.N.Y. March 31, 2020) (denying release to 67-year-old former...