United States v. Ford, Case No. 2:20-CR-51

455 F.Supp.3d 512

UNITED STATES, Plaintiff,

v.Aaron FORD, Defendant.

Case No. 2:20-CR-51

United States District Court, S.D. Ohio, Eastern Division.

Filed April 21, 2020

Jonathan J.C. Grey, United States Attorneys Office, Melanie R. Tobias, Columbus City Attorney's Office, Columbus, OH, for Plaintiff.

Soumyajit Dutta, Deborah L. Williams, Federal Public Defender, Columbus, OH, for Defendant.

OPINION & ORDER

SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE

Defendant Aaron Ford's Motion to Revoke Magistrate's Detention Order (ECF No. 17) and the Government's Opposition thereto (ECF No. 18) are presently before the Court for consideration. The Court determines that the motion is suitable for a decision without a hearing given current health concerns and restrictions.

I. BACKGROUND

Mr. Ford was arrested on March 3, 2020 on charges of knowingly possessing a firearm as a convicted felon and possessing a firearm after having previously been convicted of a domestic violence offense. (ECF No. 1.) Magistrate Judge Vascura ordered him detained that same day pending a detention hearing. (ECF No. 5.) The Magistrate held that hearing on March 6, 2020 and considered the factors set forth in 18 U.S.C. § 3142(g). (ECF No. 8.) She determined that the Government had proven by clear and convincing evidence that no condition or combination of conditions of release will reasonably assure the safety of any other person and the community. Id. Her reasons for so holding included: the weight of the evidence against Mr. Ford was strong; Mr. Ford's prior criminal history; his participation in criminal activity while on probation, parole, or supervision; his history of violence or use of weapons; his lack of stable employment and his prior violations of probation, parole, or supervised release. Id. ; see also audio of March 6, 2020 detention hearing at 27:20-39:34.

The March 12, 2020 two-count Indictment charges Mr. Ford with violating 18 U.S.C. §§ 922(g)(9) and 924(a) by knowingly possessing a firearm after being convicted of domestic violence and 18 U.S.C. § 922(g)(1) and 924(a) by being a felon in possession of a firearm. (ECF No. 11.) The Indictment contains a forfeiture allegation for the gun at issue. Id. Mr. Ford plead not guilty on March 24, 2020. (ECF No. 14.)

His jury trial is presently scheduled for July 27, 2020.

II. DISCUSSION

In sum, Mr. Ford wants to be released from pre-trial detention to electronic home confinement with GPS monitoring at his aunt's residence because of coronavirus and his resultant inability to communicate with counsel. He presents this request in a boilerplate motion the Court has seen several times before with only minimal alteration. He attaches a declaration from a doctor in California who has absolutely no connection to this case generically opining on the risk of COVID-19 transmission in jails. Yet, Dr. Williams, the declarant, does not aver that she has ever set foot in, or performed specific research on, the Jackson Pike facility where Mr. Ford is being detained. And, she specifically limits the declaration's use to defendants whose release does not jeopardize public safety. (ECF No. 17-1 at ¶ 4.) As shown below, Mr. Ford does not fall into that category. Thus, her affidavit is completely irrelevant.

Also of no use is Mr. Ford's recitation of multi-layered hornbook hearsay to the effect that an unidentified person at the public defender's office spoke to another unidentified individual at Jackson Pike who allegedly said that an unidentified guard told an unidentified inmate that several unidentified guards have tested positive for COVID-19. (ECF No. 17 at 5.)

Lastly, Mr. Ford references a news article discussing possible unsanitary conditions at the Franklin County Jail in downtown Columbus. (ECF No. 17 at 3.) But Mr. Ford is housed at Jackson Pike, and he makes no similar argument about that facility. Id. The article is therefore of no use to the instant discussion.

Having established what the Court cannot rely on when addressing his ask, the Court turns to what it can—the statutory bases for the motion. He cites to 18 U.S.C. § 3145(b), which permits review of detention orders issued by Magistrate Judges, and to 18 U.S.C. § 3142(i) of the Bail Reform Act, in support.

Section 3145(b) governs review of detention orders and provides that "[i]f a person is ordered detained by a magistrate judge ... that person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly." Reconsideration of a defendant's detention order may be granted only on new information "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." United States v. Shelton , No. 3:19-cr-14, 2020 WL 1815941, at *2, 2020 U.S. Dist. LEXIS 62655, at *4-5 (W.D. Ky. Apr. 9, 2020) (quoting 18 U.S.C. § 3142(f) ); see also United States v. Watson , 475 F. App'x 598, 600 (6th Cir. 2012) (citing 18 U.S.C. § 3142(f)(2)(B) ). "New and material information for § 3142(f)(2)(B) purposes consists of ... truly changed circumstances, something unexpected, or a significant event." United States v. Jerdine , No. 1:08 CR 00481, 2009 WL 4906564, at *3, 2009 U.S. Dist. LEXIS 117919, at *6-8 (N.D. Ohio Dec. 18, 2009) (citation omitted).

Mr. Ford maintains that COVID-19 qualifies as each of those. Due to the virus, the President of the United States has declared a national health emergency, the federal courthouses within this district are closed until June 1, 2020 pursuant to General Order 20-08, and Ohio's Governor has issued a statewide "Stay at Home" order. Governor DeWine's order is designed to facilitate social distancing among individuals to slow the spread of COVID-19 and permit health care facilities to sufficiently treat the expected influx of those infected with the virus.

Mr. Ford notes that social distancing is nearly impossible in the confined setting of the county jail where he is currently incarcerated. He states that his walker further exacerbates his inability to distance himself from others. In contrast, the Government argues COVID-19 changes nothing because no conditions exist that would assure the public's safety were he to be released. (ECF No. 19 at 1, 3.)

The Court concurs that COVID-19 presents a novel and unprecedented change in circumstances. But that change presently plays no material role as to whether there are conditions of release that will reasonably assure the safety of the public were Mr. Ford to be released. Material information is information "of a nature that ... would increase the likelihood that the defendant is less likely to pose a danger to the community." Watson , 475 F. App'x 598, 600 (6th Cir. 2012). The mere possibility of Mr. Ford's contracting COVID-19 while inside Jackson Pike is of no import to his risk of harm to the public outside of the facility. Mr. Ford's Motion to Revoke (ECF NO. 17) is therefore DENIED under § 3142(f). See United States v. Rivera , No. 09-CR-619 (SJF), 2010 WL 1687069, at *3 (E.D.N.Y. Apr. 21, 2010) (defendant "has not demonstrated that the circumstances concerning his bail application have significantly changed since Magistrate Judge Orenstein's detention order so as to warrant reopening the detention hearing and releasing [defendant] on bail" under § 3142 ); see also United States v. Rodriguez-Adorno , 606 F. Supp. 2d 232, 234, 237-239 (D.P.R. 2009) (declining to reopen magistrate judge's denial of bond because defendant presented no new material evidence to the district court); see also United States v. Perozzi , No. 09CR117-16-SM, 2009 WL 2929292, at *2 (D.N.H. Sept. 9, 2009) (same); see also United States v. Juarez , No. 2:16-cr-00265-GMN-CWH-23, 2018 U.S. Dist. LEXIS 211036, at **6-7, 2018 WL 10016172 (D. Nev. Dec. 13, 2018) (denying defendant's motion for review of magistrate's denial of defendant's motion for reopening of bond proceedings that took place before the magistrate partly for lack of new material evidence and noting the new material evidence requirement is "strictly interpreted").

Assuming, arguendo, that COVID-19 satisfies § 3142(f) ’s new and material information requirement, the Court proceeds to a further review of Magistrate Vascura's detention order utilizing the de novo standard. United States v. Yamini , 91 F. Supp. 2d 1125, 1129 (S.D. Ohio 2000) (explaining that although the Sixth Circuit has not mandated a particular standard of review, "the majority view appears to favor ...de novo review of detention orders").

"The default position of the law ... is that a defendant should be released pending trial." United States v. Stone , 608 F.3d 939, 945 (6th Cir. 2010). A defendant may be detained pending trial only when a judicial officer "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). "Pretrial detention can be ordered based on a judicial finding of either substantial danger to the community or risk of flight; only one is required." United States v. Xiaorong You , No. 2:19-CR-14, 2019 WL 2426659, at *2, 2019 U.S. Dist. LEXIS 96776, at *5 (E.D. Tenn. June 10, 2019) (quoting United States v. Hernandez , No. 1:02-CR-006, 2002 U.S. Dist. LEXIS 26904, 2002 WL 1377911, at *3 (E.D. Tenn. Feb. 27, 2002)) (citing United States v. Portes , 786 F.2d 758, 765 (7th Cir. 1985) ). Here, the Government contends only that Mr. Ford is a danger to the community. Thus, the Government must prove that he is a danger to the public for which no condition or set of conditions will reasonably assure the community's safety by clear and convincing evidence. United States v. Hinton , 113 F. App'x 76, 77 (6th Cir. 2004).

The Magistrate correctly found that the Government satisfied its burden. Mr. Ford was convicted...