United States v. Livesay

UNITED STATES OF AMERICA v. DUSTIN MICHAEL LIVESAY, Defendant.

Magistrate Case No. 19-0016 (DAR)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

January 29, 2021

MEMORANDUM OPINION AND ORDER

Defendant Dustin Michael Livesay ("Defendant"), through his counsel, has requested that he be temporarily released from pretrial detention due to the ongoing coronavirus pandemic. See Emergency Mot. for Immediate Release to Home Confinement ("Emergency Motion"), ECF No. 34. Upon consideration of the relevant filings, the Emergency Motion is Denied.¹

I. Background

Defendant is charged by criminal complaint with one count of knowingly receiving and distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2). See Crim. Complaint ("Compl."), ECF No. 1. Defendant was arrested in January 2019 and he appeared before a magistrate judge in the Eastern District of Missouri. See Rule 5(c)(3) Documents at 1-3, ECFNo. 2. Defendant was then transferred to the District of Columbia, and he had his initial appearance in this jurisdiction before Magistrate Judge G. Michael Harvey on February 28, 2019. See Feb. 28, 2019 Minute Entry. At that time, Magistrate Judge Harvey granted the government's oral motion for a detention hearing. See id. The detention hearing has been continued upon Defendant's request or with his consent since that time, and he has remained held without bond pending trial.² On March 13, 2020, the President of the United States declared a national emergency due to the novel coronavirus, a virus that causes the COVID-19 disease. See Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020). Thereafter, Defendant filed the pending Emergency Motion requesting that he be released from pretrial detention to home confinement "until such time that the D.C. Department of Corrections can assure inmates that the facility is reasonably free from exposure to the virus." Emergency Motion at 1. He proffered that he has Type II diabetes³ and asthma, and that these conditions make him more susceptible to the coronavirus. See id. The United States opposed this request, arguing that Defendant's release was not warranted by the Bail Reform Act under either the four statutory factors or the temporary release provision. Gov's Opp'n at 3-6, 10 n.2. In response,Defendant clarified that he was not seeking a detention hearing, and also argued that his continued detention at the D.C. Jail violated his constitutional rights. Def.'s Reply at 1.

On May 26, 2020, Defendant filed a supplement to his motion, noting that he had contracted the coronavirus. Def.'s Suppl. at 1. Defendant again indicated that he requested his release pursuant to 18 U.S.C. § 3142(i), which provides for "the temporary release of the person" in certain circumstances. The United States continued to oppose Defendant's request for release. See Gov's Opp'n to Def's Suppl. The undersigned began a hearing on Defendant's Emergency Motion on June 9, 2020, and the hearing was continued to and concluded on June 15, 2020. See June 9, 2020 Minute Entry; June 15, 2020 Minute Entry. During the hearings, counsel for Defendant reiterated that the request was for Defendant's temporary release during the coronavirus pandemic, but agreed that the matter could be considered a detention hearing. At the conclusion of the hearing the undersigned took the Emergency Motion under advisement. In addition, the undersigned requested that an officer with the Pretrial Services Agency provide the Court with information on whether Pretrial Services in Missouri—where Defendant requested to reside—had the capability of monitoring Defendant's electronic devices. See June 15, 2020 Minute Entry. The Pretrial Services Agency filed a report responding to that request on June 16, 2020. See June 2020 Pretrial Report.

II. Legal Standard

The Bail Reform Act provides for the detention of certain individuals pending trial. See 18 U.S.C. § 3142. Defendant is charged with a violation of 18 U.S.C. § 2252, which qualifies as a crime of violence under the Bail Reform Act. See 18 U.S.C. § 3156(a)(4)(C). As such, he falls within the category of defendants for whom the United States may request a detention hearing. See 18 U.S.C. § 3142(f)(2)(A) (a judicial officer shall hold a detention hearing upon a motion bythe government where a defendant is charged with a crime of violence). In addition, if there is probable cause to find that Defendant committed an offense in violation of 18 U.S.C. § 2252(a)(2), a rebuttable presumption that no such release conditions exist is triggered. See 18 U.S.C. § 3142(e)(3)(E). At the conclusion of a detention hearing, if "the 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, such judicial officer shall order the detention of the person before trial." 18 U.S.C. § 3142(e)(1). If adequate conditions can be imposed, the defendant will be released pursuant to 18 U.S.C. § 3142(c).

A detention decision based upon the defendant's dangerousness to the community must be supported by "clear and convincing evidence." 18 U.S.C. § 3142(f); see United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996) (per curiam). In contrast, a detention decision based upon a finding that no set of conditions will reasonably assure the defendant's appearance in court "need only be supported by a 'preponderance of the evidence.'" United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987) (quoting United States v. Vortis, 785 F.2d 327, 328-29 (D.C. Cir. 1986) (per curiam)). In determining whether a defendant should be released, the Court is to consider four statutory factors: "(1) the nature and circumstances of the offense charged . . . ; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, . . . ; 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). Additionally, another provision of the Bail Reform Act states that a "judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessaryfor preparation of the person's defense or for another compelling reason." 18 U.S.C. § 3142(i) (emphasis added).

III. Discussion

Defendant initially requested that he be released pursuant to 18 U.S.C. § 3142(i), but subsequently argued for release pending trial pursuant to 18 U.S.C. § 3142(c) as an alternative. As these statutory provisions set different standards for release and detention, the Court will first address the proper standards for analyzing Defendant's request, and will then discuss why Defendant should not be released under either provision.

A. Statutory Provisions Governing Release

The first issue before the Court is whether Defendant's release request should be evaluated under the four Bail Reform Act factors to determine whether release pending trial is justified under 18 U.S.C. § 3142(c), or under the temporary release provision codified at 18 U.S.C. § 3142(i).

During the hearing on June 15, 2020, the parties referred to another matter pending in this court, United States v. Dhavale ("Dhavale"), which was in a similar procedural posture as the instant matter when that defendant requested his release. See United States v. Dhavale, No. 19-MJ-00092, 2020 WL 1935544 (D.D.C. Apr. 21, 2020). As in the instant matter, the defendant in Dhavale conceded to his pretrial detention without having a detention hearing, until the time he requested his release due to the coronavirus pandemic. See id. at 1. The magistrate judge who heard the motion "construed defendant's motion as requesting: (1) defendant's release pending a detention hearing, or (2), in the alternative, an immediate detention hearing" and with no objection from the United States, held a detention hearing. Id. at 2 (internal citation omitted). The magistrate judge ordered the defendant's release with conditions after weighing the statutory Bail Reform Act factors. See id. The United States appealed, and Chief Judge Howell foundthat defendant should be detained pending trial in accordance with 18 U.S.C. § 3142(e), but that he should be temporarily released in accordance with 18 U.S.C. § 3142(i). See id. at 3.

The undersigned finds that the instant request for temporary release is properly brought only after an initial detention decision is made. The provision at 18 U.S.C. § 3142(i) authorizing a defendant's temporary release should be read in the context of the other requirements outlined in that sub-section. The heading of sub-section (i) is "Contents of detention order," and the provision specifies the information that must be included "[i]n a detention order issued under subsection (e)." 18 U.S.C. § 314(i). In addition, the language providing for the temporary release of a defendant is preceded by: "[t]he judicial officer may, by subsequent order . . ." Id. (emphasis added). Read fully, subsection (i) authorizes the release of a defendant who has already had a detention hearing. As such, the undersigned construes the hearings on June 9 and 15, 2020 as having two components: first a detention hearing, and second, if the Court concluded that Defendant should be held without bond pending trial, a hearing on whether Defendant should temporarily be released. To the extent the docket reflects that the case was called for a different type of hearing, it shall be edited accordingly. See Fed. R. Cr. P. 36. Defendant's arguments for release fail under each standard.

i. Release Under 18 U.S.C. § 3142(c)

In considering whether Defendant should be detained pending trial, the undersigned evaluated and weighed the four Bail Reform Act factors. Three of the four factors favor pretrial detention, and when the factors are...