United States v. Oury

452 F.Supp.3d 1364

UNITED STATES of America,

v.Levi Joseph OURY, Defendant.

CR419-080

United States District Court, S.D. Georgia, Savannah Division.

Signed April 7, 2020

Frank Morgan Pennington, II, Joshua S. Bearden, Bobby L. Christine, Brian T. Rafferty (AUSA), U.S. Attorney's Office, Savannah, GA, for United States of America.

Robert Paul Phillips, III, Phillips, Carson & Phillips, Savannah, GA, for Defendant.

ORDER

Christopher L. Ray, United States Magistrate Judge

Defendant Levi Joseph Oury is charged with three counts of interstate stalking in violation 18 U.S.C. § 2261A(1). Doc. 3 (Indictment). The case was previously set for trial on April 7, 2020. See doc. 76 at 1. The Government moved to continue because several witnesses it intended to call were military personnel, stationed overseas, whose return was precluded by the early stages of what has emerged as the global COVID-19 pandemic. See doc. 80. The Court granted the continuance and trial is now scheduled to commence on June 2, 2020. See doc. 86. As a result of that continuance, and at the invitation of the District Judge, Oury filed a motion for reconsideration of his pretrial detention. Doc. 84. The Court held a hearing on that motion on April 2, 2020. Doc. 91 (minute entry). For the reasons explained below, that motion is DENIED .

BACKGROUND

Defendant was indicted on May 8, 2019 for three counts of interstate stalking. Doc. 3. The indictment alleges that from March 10, 2019 to March 15, 2019, defendant traveled from West Virginia to Georgia with the intent to harass and intimidate, and with the intent to place under surveillance with intent to harass and intimidate an individual identified as K.M.J. as well as her parents. Id. at 1-3. The Government investigation revealed defendant's years-long history of harassing K.M.J. and her family, as well as threatening communications with other individuals. See, e.g. , doc. 58-1. Defendant had also traveled, on more than one occasion, to locations where the victim worked or resided. Id. Based on that information, the Government obtained an arrest warrant for defendant. Id. Federal and state officers executed that warrant in the morning of May 14, 2019 in Morgantown, West Virginia where defendant was a student. Doc. 58 at 1-2.

After a detention hearing, see doc. 27 (Minute Entry), the Court ordered Oury detained pending trial, doc. 28. The Court found that the Government had demonstrated, by clear and convincing evidence, that no condition or combination of conditions of release would reasonably assure the safety of other individuals and the community. Doc. 28 at 2. The Order noted that "[t]he defendant's course of action over the last several years, (including provocative social media posts, threatening communications with mutual friends, and multistate travel that placed the defendant in close proximity to the alleged victim on multiple occasions) suggests that he is fixated upon the alleged victim to such a degree that the Court is unable to envision a set of conditions that would reasonably assure the safety of the community." Id. at 3. Defendant appealed that Order. Doc. 30. The District Judge affirmed, finding "by clear and convincing evidence that Defendant poses a significant danger to the safety of the alleged victims in this case and to the community, and any conditions of release would be inadequate to reasonably assure their safety." Doc. 44 at 1. It is that determination that Oury asks the Court to reconsider here.

ANALYSIS

Although Oury's motion is styled as a motion for reconsideration, the issues it raises are more complicated. The Bail Reform Act contemplates that a detention hearing may be "reopened ... 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 of whether there are conditions of release that will reasonably assure ... the safety of any other person and the community." 18 U.S.C. § 3142(f)(2)(B). In addition to seeking to reopen the detention hearing, his counsel clarified that he also challenged the constitutionality, under the Fifth Amendment's Due Process clause, of continued detention. Since these challenges require different analyses, the Court will address them sequentially.

I. Motion for Reconsideration

At the hearing on his motion, defendant identified several circumstances he contends have changed since the Court's initial determination that warrant reopening of the detention hearing. First, he contends that the risk of continued detention created by the global COVID-19 pandemic militates against such detention. Second, he presented several witnesses and exhibits that he contends contradict, or at least countervail, the Government's showing of his dangerousness.

The Court can quickly, if not easily, dispose of defendant's argument that the COVID-19 pandemic supports his pretrial release. Although the Court is sensitive to the additional risks posed by the pandemic, those risks, as they currently stand, are not cognizable reasons for a criminal defendant's pretrial release under the Bail Reform Act, 18 U.S.C. § 3141, et seq. The United States District Court for the District of Kansas has recently discussed the relevance of COVID-19 to the analysis mandated by § 3142. See United States v. Clark , 448 F.Supp.3d 1152, 1156 (D. Kan. Mar. 25, 2020). The court explained:

A defendant's concerns that he or she would face heightened COVID-19 risks if incarcerated would not typically factor into a § 3142(f) analysis, which focuses on whether the court can fashion conditions of release that will reasonable assure the defendant is not a risk of nonappearance or a risk of harm to any others or the community. The risk of harm to the defendant does not usually bear on this analysis."

Id. A particular defendant's susceptibility to infection, because of age or other medical condition, might be relevant to an analysis under § 3142(i)'s "another compelling reason" prong. Id. Oury does not suggest any individualized susceptibility. The Court, therefore, agrees with the District of Kansas' conclusion that, although "mindful of the unprecedented magnitude of the COVID-19 pandemic and the extremely serious health risks it presents[,] ... a defendant should not be entitled to temporary release under § 3142(i) [, or, a fortiori , reconsideration of a determination under § 3142(f) ] based solely on generalized COVID-19 fears and speculation." Id.¹

The Court is also unconvinced that the additional evidence defendant presented at the hearing alters the detention determination. Oury presented testimony from his father, David Oury, and several other witnesses who presented character testimony. David Oury testified about his son's travel habits during the years before the events giving rise to the present charges. His testimony suggested that harassing or surveilling K.M.J. might not have been defendant's purpose in a portion of the travel charged in the indictment. This testimony, as defense counsel argued, might cast doubt on the Government's characterization of the travel-related conduct charged. Defense counsel also submitted exhibits which he construed as undermining the Government's evidence related to defendant's intent. Such evidence is certainly relevant to the weight of the evidence against the defendant. See 18 U.S.C. § 3142(g)(2). However, to the extent that it diminishes that weight, it is not sufficient to alter the detention determination.²

Several other witnesses provided testimony in the nature of character evidence. This testimony also might weigh into the balance of the detention determination. See 18 U.S.C. § 3142(g)(3)(A). Two of the witnesses, Adam Lamnin, a family friend, and Alan Joubert, testified to their assessment of defendant's character several years before the events in question took place. The third, Abigail Reese, attested to defendant's good character during a period more proximate to the events in question, but conceded that she had no knowledge of defendant's interactions with the alleged victim.

To be sure, the witnesses' testimony weighs in defendant's favor, but they add little to the Court's prior analysis of his character. See doc. 44 at 16-17. At the time of the initial detention determination, the District Judge noted that defendant "is a college student, ... he has no criminal history[, and] he has loving family members with impressive credentials" supporting him. Id. at 16. All of witnesses at the hearing reinforced that assessment. The District Judge noted, on the contrary, "for each positive history and characteristic that the defense has highlighted, the record presents other attributes that bode more ominously[,]" including his "violent outbursts ... that required Defendant's father and others to call the police[,]" and the fact that "Defendant's roommates at West Virginia University became so concerned with his behaviors, particularly towards females, that they took it upon themselves to contact law enforcement about him." Id. The character testimony presented, merely reinforced the Court's prior assessment. But the new testimony does nothing to undermine the countervailing facts-which remain as they were several months ago. The Court remains concerned "that [defendant] may not have buried his propensity for violence as deeply as his family [and friends] had hoped." Id.

Accordingly, the Court finds that, additional evidence notwithstanding, the Government has proven by clear and convincing evidence, considering the factors set forth in 18 U.S.C. § 3142(g), that no condition or combination of conditions of release will reasonably assure the safety of any other person and the community.

II. Due Process

Normally, a determination that the Government had borne its burden would conclude a detention determination. Under the circumstances of this case, however, there is a further concern. The Eleventh Circuit has recognized "that ‘at some...