United States v. Johnson

UNITED STATES OF AMERICA v. ERIC TYRELL JOHNSON Defendant

Case No. DKC-20-CR-0038-003

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

December 8, 2020

MEMORANDUM OPINION AND ORDER OF COURT

This matter is before the Court on the defendant's Motion for Review of Detention Order (the "Motion") (ECF No. 128), the defendant's Supplemental Briefing (the "Supplement") (ECF No. 140), and the government's Response in Opposition to Motion for Review of Detention Order (the "Opposition") (ECF No. 144). The issues have been fully briefed, and no hearing is necessary. L.R. 105.6, 207. For the reasons stated below, the Motion is DENIED.

I. PROCEDURAL HISTORY

The defendant is charged in this case with Conspiracy to Distribute and Possess with Intent to Distribute Controlled Substances, in violation of 21 U.S.C. § 846; Possession with Intent to Distribute Controlled Substances, in violation of 18 U.S.C. § 841(a)(1); and Possession of a Firearm and Ammunition by a Prohibited Person, in violation of 18 U.S.C. § 922(g)(1). On March 19, 2020, the defendant appeared before this Court for a detention hearing.

II. BAIL REFORM ACT

Pretrial detention and release are governed by the Bail Reform Act (the "BRA"). 18 U.S.C. §§ 3141 et seq. The government is permitted to seek pretrial detention of the defendant in this case because the defendant is charged with an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. §§ 801 et seq.) and with an offense involving the possession of a firearm. Id. § 3142(f)(1)(C) & (E). In fact, a rebuttable presumption of detention applies in this case because the defendant is charged with an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act. Id. § 3142(e)(3)(A). Where the presumption can be rebutted, the BRA requires the Court to order the pretrial release of the person "subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community." Id. § 3142(c)(1)(B). If, however, the Court finds after a detention hearing 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," the Court "shall order the detention of the person before trial." Id. § 3142(e)(1). "The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence." Id. § 3142(f). On the other hand, where risk of flight is the basis of a detention order, the government must prove by a preponderance of the evidence that no combination of conditions of release will reasonably assure the defendant's presence at future court proceedings. United States v. Stewart, 19 F. App'x 46, 48 (4th Cir. 2001) (per curiam).

The Court's determination is governed by four factors:

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1951, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive or destructive device;(2) The weight of the evidence against the person;

(3) The history and characteristics of the person, including -

(A) The person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(B) Whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

(4) The nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C. § 3142(g).

III. REOPENING THE DETENTION HEARING

After hearing from the parties at the detention hearing, the Court reviewed the factors set forth in 18 U.S.C. § 3142(g) and found that the defendant had not introduced sufficient evidence to rebut the presumption of detention. Therefore, the Court ordered that the defendant be detained. See Order of Detention (ECF No. 77). The defendant is presently detained in the D.C. Department of Corrections (the "DOC") at the Central Treatment Facility ("CTF").¹ The defendant now moves to reopen the detention hearing. Indeed, under 18 U.S.C. § 3142(f), a detention hearing

may be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and 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.

The defendant argues that the detention hearing should be reopened because information exists that was not known to him at the time of the detention hearing, and that this information has a material bearing on the issue of whether there are conditions of release that will reasonably assure his appearance as required and the safety of any other person and the community. Specifically, the defendant asserts that "the more rapid spread of COVID-19 throughout the D.C. Jail raises new risk which must be considered and balanced against Mr. Johnson's presumed danger to the community." Motion (ECF No. 128 at 2). Notably, unlike many other detainees who have recently filed motions for release in this Court, the defendant does not claim that, because of a particular physical or mental condition, or advanced age, he is at an increased risk of contracting the virus or suffering severe complications if he does. See, e.g., United States v. Wheeler, Criminal Case No. CCB-19-0455, 2020 WL 2085473 (D. Md. Apr. 30, 2020) (asthma, COVID-19, diabetes); United States v. Lee, No. ELH-19-159, 2020 WL 1974881 (D. Md. Apr. 24, 2020) (high blood pressure, obesity, depression); United States v. Green, Criminal Case No. CCB-19-0539-1, 2020 WL 1873967 (D. Md. Apr. 15, 2020) (asthma, high blood pressure, chronic obstructive pulmonary disease); United States v. Williams, Criminal Case No. PWG-13-544, 2020 WL 1434130 (D. Md. Mar. 24, 2020) (advanced age); United States v. Bilbrough, Criminal Case No. TDC-20-0033 (D. Md. Mar. 20, 2020) (diabetes), aff'd, 452 F. Supp. 3d 264 (D. Md. Apr. 7, 2020); United States v. Martin, 447 F. Supp. 3d 399 (D. Md. 2020) (diabetes, high blood pressure, asthma). Rather, the defendant relies primarily upon a generalized risk of exposure and contraction of COVID-19 as a basis for release. He also asserts that the availability of a suitable third-party custodian, the need to reduce the inmate population at the Jail to protect the health of the detainees, and the fact that he has been detained for more than one year with little progress in his case weigh in favor of release.

COVID-19 is a worldwide pandemic that has had a profound impact on the health and daily life of millions of people. According to the Centers for Disease Control and Prevention (the "CDC"), as of December 7, 2020, there were 14,636,914 COVID-19-positive cases in the United States and 281,253 deaths related to the virus.² COVID-19 poses special risks for the elderly and those with certain preexisting medical conditions. Prisons, jails, and detention centers are especially vulnerable to outbreaks of COVID-19. See Coreas v. Bounds, 451 F. Supp. 3d 407, 413-14 (D. Md. 2020).

At the outset, the Court finds that the unprecedented magnitude of the COVID-19 pandemic and the heightened risk of exposure to residents of detention facilities constitute information not known to the defendant at the time of the detention hearing that arguably has a material bearing on whether conditions of release can be fashioned to assure the appearance of the defendant as required and the safety of the community. See, e.g., Bilbrough, Order at 4; Martin, 447 F. Supp. 3d at 401. Therefore, the defendant has established a satisfactory basis to reopen the detention hearing.

Considering that the defendant's primary basis for reopening the detention hearing concerns new information regarding the impact that COVID-19 may have on his health, the Court finds the following comments by United States District Judge Stephanie A. Gallagher in a recent case particularly instructive:

Congress carefully prescribed the factors that a court should consider in weighing whether a particular defendant should be detained or released before trial. See generally 18 U.S.C. § 3142(g). None of those factors refers specifically to the health of the defendant, or to whether the conditions of incarceration threaten the defendant's well-being. Instead, Congress focused the required inquiry on the defendant's risk of nonappearance, and the danger that the defendant's release would pose to otherindividuals. In some circumstances, clearly, a particular defendant's medical condition could reduce that defendant's risk of flight or danger to the community, and the health condition would therefore fall within the factors appropriately considered in the context of § 3142(g). Absent those circumstances, however, a particular defendant's health conditions, and the possible risks posed to the defendant by incarceration, do not affect the § 3142(f) and (g) analysis. See, e.g., United States v. Clark, 2020 WL 1446895, at *3 (D. Kan. Mar. 25, 2020) ("A defendant's concerns that he or she would face heightened COVID-19 risks if incarcerated would not typically factor

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