United States v. Sanders

466 F.Supp.3d 779

UNITED STATES of America, Plaintiff,

v.Erron SANDERS, Defendant.

2:19-cr-20288

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

Signed May 11, 2020

Mitra Jafary-Hariri, United States Attorney's Office, Detroit, MI, for Plaintiff.

Federal Defender, David C. Tholen, Federal Defender Office, Detroit, MI, for Defendant.

ORDER DENYING MOTION FOR RECONSIDERATION

TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the government's motion seeking reconsideration of the Court's April 17, 2020 order releasing Erron Sanders to home confinement until sentencing.

Sanders has been in custody since he made his initial appearance in federal court more than a year ago, on April 30, 2019. ECF No. 7 (Consent Order of Det.). At first, Sanders consented to federal detention because he was in state custody on a parole violation at the time of his appearance. ECF No. 18, PageID.47 (Mot. for Pretrial Release). Later he filed a motion seeking to be released on conditions, but at the hearing asked to defer any decision on that motion while he gathered relevant medical records in support of his motion. Id. See Oct. 18, 2019 Dkt. Entry. Sanders eventually pleaded guilty. After the COVID-19 pandemic arose, he renewed his motion for release. ECF No. 29 (R. 11 Plea Agr.). The Court granted Sanders's motion provisionally, pending a hearing on any motion to reconsider. ECF No. 35 (Apr. 17, 2020 Order). Until that hearing, no judicial officer had conducted a full detention hearing or made any determination as to whether there were conditions that would overcome any risk that Sanders might flee or present a danger to the community. At the evidentiary hearing, which took place on April 30, 2020, the Court received testimony from two witnesses as well as additional briefing and exhibits in support of the parties’ respective positions.

Under the relevant provision of the Bail Reform Act, 18 U.S.C. § 3143(a), which governs release or detention pending sentencing, "the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of a sentence ... be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community if released" under conditions as allowed under § 3142(b) and (c).

While the question of bond in this case is admittedly a close one, having weighed all of the available evidence presented by the parties, the Court finds that there is clear and convincing evidence that, if released under strict conditions of home confinement and close supervision, Sanders is unlikely to flee or pose a danger to the community. Flight has never been a salient issue in this case, as Sanders has no resources and no record of interstate or international travel. Although he has used numerous alias names in the past, and has a history of violating parole conditions, no proof has been admitted showing a likelihood of flight. Evidence relating to danger to the community consists primarily of the concern that because Sanders has committed crimes in the past, including when on parole, it is likely he will commit crimes again if released. There is considerable appeal to this argument.

But there are also three countervailing factors that allow Sanders to demonstrate by clear and convincing evidence that he will not pose a danger if released on home confinement. First, the ongoing COVID-19 pandemic creates strong disincentives for both flight and criminal activity by discouraging person-to-person contact and travel, especially for individuals who, like Sanders, suffer from poor health and advanced age. Second, Sanders's criminal history is predominantly non-violent, and there is no evidence of any tendency on his part to use physical force against others. This mitigates the Court's concern about the level of danger he may pose to the public. Third, requiring Sanders to remain in strict home confinement in the custody of his fiancée, a responsible third-party custodian, in an area far removed from the neighborhood where he has previously engaged in drug trafficking, will adequately protect the community during the limited time between now and sentencing. The motion for reconsideration, ECF No. 37, will therefore be denied. Sanders will be released to home confinement in the custody of his fiancée and third-party custodian, Theresa Holloway, until the date set by this Court for his sentencing.

BACKGROUND

The factual and procedural background of this case is set forth in detail in the Court's April 17, 2020 Order. ECF No. 35. Briefly, Sanders has pled guilty to the offense of felon in possession of a firearm, 18 U.S.C. § 922(g)(1). He is currently awaiting sentencing. As mentioned above, there has not previously been any judicial assessment of flight risk or dangerousness in this case because Sanders originally consented to detention. ECF No. 7. At the April 30, 2020 hearing on this matter, the parties presented evidence and argument about potential risk factors for flight and continued criminal activity.

The Court heard testimony by Special Agent Nicholas Mascorro, of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") establishing that ATF agents conducted controlled purchases of heroin and oxycodone from Sanders in early 2019, in the months leading up to the execution of a search warrant at his home. Agents also discovered a firearm and significant amounts of cash during the course of that search. Sanders was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The government elected not to charge Sanders with any of the alleged drug-trafficking conduct that was the subject of both the hearing testimony and the affidavit in support of the search warrant.

Theresa Holloway, Sanders's former spouse and current fiancée, also testified concerning her suitability as a third-party custodian for Sanders, should he be released to home confinement. Holloway lives by herself in Grand Rapids, Michigan. Because she is currently unemployed and following Michigan Governor Gretchen Whitmer's stay-at-home order, she is at home essentially 24 hours each day. See GOVERNOR OF MICHIGAN , E.O. No. 2020-42 (requiring that all individuals in the state "are ordered to stay at home or at their place of residence," subject to enumerated exceptions), No. 2020-77 (amending E.O. 2020-42 to extend its duration to May 28, 2020). Holloway has a car and is willing to pick Sanders up from the Federal Detention Center in Milan, Michigan and bring him back to Grand Rapids. Through her testimony, she demonstrated that she takes seriously the responsibility inherent in serving as a third-party custodian. Holloway swore that she would monitor Sanders's conduct and report any violations of conditions of release to the Court, knowing that it could result in his incarceration.

Sanders is currently in quarantine in a special housing unit at the Milan Federal Correctional Institution in anticipation of release to home confinement. See ECF No. 35, PageID.206. Before being moved to quarantine, Sanders was held at the Milan Federal Detention Center. As of May 8, two detainees at Milan FDC have COVID-19. Milan Federal Correctional Institution, in contrast, has 11 open cases of COVID-19 among its prison population, with 57 inmates having recovered from the disease. Of the 55 Milan FDC and FCI employees originally diagnosed with COVID-19, 46 have recovered and returned to work.

DISCUSSION

Because Sanders has already been convicted of an offense and accordingly is awaiting sentencing rather than trial, his release or detention is governed by 18 U.S.C. § 3143(a). Under that provision, the judicial officer must find by "clear and convincing" evidence that Sanders is neither a flight risk nor a danger to the community. 18 U.S.C. § 3143(a)(1). Having heard and considered all the evidence, the Court finds that he has met that burden and that release is therefore warranted under § 3143(a)(1).

Before discussing the evidence, the Court notes that the government correctly pointed out that the previous order wrongly interpreted 18 U.S.C. § 3145(c), the "exceptional reasons" analysis. That section cannot be applied to Sanders because he is not appealing a mandatory order of detention required by 18 U.S.C. § 3143(a)(2) or (b)(2). Those two provisions create a presumption of detention for defendants convicted of certain serious offenses or awaiting appeal. Such defendants may appeal a mandatory detention order on the basis that they no longer pose a flight risk or danger to the community, and "exceptional reasons" justify their release. 18 U.S.C. § 3145(c). Sanders was not convicted of any offense that would make detention mandatory, nor has there been any previous finding on flight risk or dangerousness by a judicial officer for him to appeal. Section 3145(c) and its "exceptional reasons" analysis is therefore inapposite. Because Sanders is detained subject to § 3143(a)(1), to be released he must show by "clear and convincing" evidence that he is not a flight risk or danger to others.

In assessing whether the § 3143(a)(1) flight risk and dangerousness considerations are satisfied, the Court considers both the restricted possibility of flight during the COVID-19 pandemic, and the need to balance the defendant's potential dangerousness against public-health risks posed by continued incarceration of defendants in crowded correctional facilities. See United States v. Kennedy , No. 18-20315, 449 F.Supp.3d 713, 717 n.3 (E.D. Mich. Mar. 27, 2020) (Levy, J.). These pandemic-specific considerations are inextricable from the four 18 U.S.C. § 3142(g) factors courts generally consider in evaluating flight risk and danger. See United States v. Kahn , No. 19-80169, 2020 WL 1582279, at *6 (S.D. Fla. Apr. 2, 2020) ("[T]he COVID-19 pandemic is a valid factor for this Court to...