United States v. Frost

455 F.Supp.3d 395

UNITED STATES of America, Plaintiff,

v.Michael Anthony FROST, Defendant (2).

Case No. 18-cr-20206

United States District Court, E.D. Michigan, Southern Division.

Signed April 17, 2020

Mollie E. O'Rourke, U.S. Department of Justice, Detroit, MI, for Plaintiff.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR PRETRIAL RELEASE AND REVOCATION OF DETENTION ORDER [#132]

HON. GERSHWIN A. DRAIN, United States District Court Judge

I. INTRODUCTION

On October 15, 2019, pursuant to a Rule 11 plea agreement, Defendant Michael Anthony Frost ("Defendant") pleaded guilty to conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841, 846. ECF No. 101. Specifically, Defendant admitted that he conspired to distribute 100 grams or more of heroin and twenty-eight grams or more of crack cocaine with co-defendant Jhamall McGaughy. Id. at PageID.467. Defendant has been detained since March 19, 2019. ECF Nos. 50, 54. He is scheduled to be sentenced on June 2, 2020.

Presently before the Court is Defendant's Motion for Pretrial Release and Revocation of Detention Order, filed on April 6, 2020. ECF No. 132. The Government filed a Response on April 10, 2020. ECF No. 134. After reviewing the parties' briefs, the Court finds that no hearing on the Motion is necessary. See E.D. Mich. LR 7.1(f)(2). For the reasons that follow, the Court will DENY Defendant's Motion [#132].

II. BACKGROUND

The instant action stems from a drug and prostitution enterprise in the Eastern District of Michigan and elsewhere between 2017 and 2018. Beginning in December 2017, Defendant allowed co-defendant Jhamall McGaughy to move into his house on Cheyenne Street to operate the enterprise. ECF No. 65, PageID.216. Defendant was a "regular supplier" of controlled substances, including heroin, cocaine, and crack cocaine, to co-defendant. Id.

On March 19, 2019, Defendant was arraigned on a Third Superseding Indictment. ECF No. 50. He consented to detention on that same day, thus waiving his right to a hearing. ECF No. 54. On May 4, 2019, Defendant filed a Motion for Revocation of Detention Order. ECF No. 64. Defendant withdrew this motion on July 19, 2019. ECF No. 78. On October 15, 2019, Defendant pleaded guilty to conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841, 846. ECF No. 101. In his Motion, Defendant asserts that he is currently being held at Washtenaw County Jail. ECF No. 132, PageID.610. In its Response, the Government contends that Defendant is in fact detained at Livingston County Jail. ECF No. 134, PageID.627. After receiving the parties' briefings, the Court confirmed that Defendant is at Livingston County Jail.

Defendant is scheduled to be sentenced on June 2, 2020 before this Court.

III. LAW & ANALYSIS

A. COVID-19

COVID-19 is an abbreviation for the novel coronavirus disease of 2019, a respiratory illness that spreads easily and sustainably in the community through respiratory droplets produced when an infected person coughs or sneezes. See Centers for Disease Control and Prevention Coronavirus Disease 2019 Frequently Asked Questions, Center for Disease Control https://www.cdc.gov/coronavirus/2019-ncov/faq.html#How-COVID-19-Spreads (last updated April 13, 2020). While it is thought that people are most contagious when symptoms are present, the virus has also been detected in asymptomatic persons. See id.

There is no vaccine to prevent COVID-19, nor is there antiviral medication that can treat it. Id. ; see also ECF No. 132, PageID.614. According to the Center for Disease Control ("CDC"), "[t]he best way to prevent illness is to avoid being exposed to the virus." Id. The CDC recommends, among other things, that people clean their hands often or use hand sanitizer when soap is unavailable; avoid close contact with other people (at least six feet in distance); and clean and disinfect frequently touched surfaces daily, such as tables, doorknobs, light switches, and countertops. Id. The CDC also recommends that if an individual becomes sick, he or she should isolate from others by staying in a specific sick room and using a separate bathroom if available. Id.

The CDC has indicated that certain classes of individuals are at higher risk for developing severe illness if exposed to the novel coronavirus of 2019. Id. Older adults—65 or older—and people suffering from underlying medical conditions, such as moderate to severe asthma, chronic lung disease, serious heart disease, severe obesity, diabetes, liver disease, kidney disease ; or people who are immunocompromised, such as those who are undergoing cancer treatment, smokers, bone marrow or organ transplant recipients or donors, people with immune deficiencies, poorly controlled HIV or AIDS sufferers; and those who have prolonged use of corticosteroids and other immune weakening medications are at higher risk of developing serious illness if they are exposed to COVID-19. Id. While it has been accepted that older adults are the most vulnerable, the CDC reported that 38% of the 508 hospitalized patients were younger–between 20 and 54 years of age. See Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)–United States, February 12-March 16, 2020 , Center for Disease Control (Mar. 18, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm.

At the time of this writing, the majority of states have issued stay-at-home orders, including Governor Gretchen Whitmer of Michigan. Governor Whitmer issued a state of emergency when the State's first two cases of coronavirus were reported on March 10, 2020. Executive Order, No. 2020-04 (Mar. 10, 2020). Governor Whitmer has since issued a series of other executive orders to help prevent the spread of this novel disease. See Executive Orders , Michigan.gov, https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705---,00.html (last visited April 15, 2020). Even with such executive action, Michigan continues to experience staggering numbers of confirmed COVID-19 cases and deaths. At the time of this writing, a little more than thirty days after the initial two COVID-19 cases were reported the State, there are more than 29,200 confirmed cases in Michigan. See MDOC Response and Information on coronavirus (COVID-19) , Medium, https://medium.com/@MichiganDOC/mdoc-takes-steps-to-prevent-spread-of-coronavirus-covid-19-250f43144337 (last updated April 16, 2020) [hereinafter Medium MDOC Response and Information]. There are now 1,921 lives lost to COVID-19 in Michigan alone. Michigan surpasses 1,900 deaths due to coronvarius; 28,059 cases total in state , Detroit Free Press (April 15, 2020, 3:03 PM) https://www.freep.com/story/news/local/michigan/2020/04/15/michigan-coronavirus-cases-deaths/5138838002/.

Incarcerated individuals, and the employees who work in correctional institutions, are not immune to this pandemic. See ECF No. 132, PageID.613. Indeed, these individuals face an even greater risk. On March 23, 2020, the CDC acknowledged that correctional and detention facilities "present[ ] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors." Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities , Centers for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html [hereinafter CDC Guidance on Correctional and Detention Facilities]; see also United States v. Eubanks , No. 17-20184, 2020 WL 1814090, at *1 (E.D. Mich. April 9, 2020). COVID-19 is dangerous everywhere, but the novel disease is especially harmful within correctional institutions, where incarcerated individuals have a limited ability to exercise encouraged community practices such as social distancing and frequent handwashing. See CDC Guidance on Correctional and Detention Facilities; see also ECF No. 132, PageID.613 ("The recommended social distancing measures are nearly impossible to implement and adhere to in detention facilities where detained individuals share dining, bathing and sleeping areas[.]"). Further, a "low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, [and] highly congregational environments" increase the risk of danger to incarcerated individuals. CDC Guidance on Correctional and Detention Facilities; see also United States v. Kennedy , No. 18-20315, 449 F.Supp.3d 713, 715–16, (E.D. Mich. Mar. 27, 2020). The Court takes notice of the Government's assertion that "simply going to the grocery store" is analogous to a detention facility's risk of exposure to COVID-19. ECF No. 134, PageID.631–32. In light of the CDC's information concerning the unique challenges which COVID-19 presents to the vulnerable communities in correctional facilities, such allegations are disingenuous and incorrect. Indeed, a COVID-19 outbreak in a prison facility is not potentially problematic as suggested by the Government in its Response, ECF No. 134, PageID.631, it is problematic.

As of April 16, 2020, there are 499 prisoners who have tested positive for COVID-19 in MDOC facilities. See Medium MDOC Response and Information. These numbers are growing sharply. According to MDOC, there have been 17 COVID-19 related deaths within its prisons, including thirteen inmates; two corrections professionals; a corrections transportation officer; and a word processing assistant. Id. The Court denotes that as of the writing of this Order, there are no confirmed cases at Livingston County Jail, where Defendant is currently being held. See id. ; see also ECF No. 134, PageID.631 ("[A]s of [April 9, 2020], there were no confirmed cases at the facility.").

To its credit, MDOC has implemented a number of measures to reduce COVID-19's spread in its facilities. See 2020 Coronavirus (COVID-19) Response Q&A , Michigan Department of Corrections, https://www.michigan.gov/corrections/0,4551,7-119-9741_12798-521973--,00.html (last visited ...