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Page 1: EXHIBIT A Files/19-CR-00877-CCC... · his pretrial detention, Hearing Tr. (Dkt. 90) at 42; WHEREAS the Court found that “no condition or ... Case 2:19-cr-00877-CCC Document 74-1

EXHIBIT A

Case 2:19-cr-00877-CCC Document 74-1 Filed 03/27/20 Page 1 of 39 PageID: 1678

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UNITED STATES OF AMERICA v. EMMANUEL BONAFE, Defendant., Slip Copy (2020)

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

2020 WL 1467146Only the Westlaw citation is currently available.

United States District Court, S.D. New York.

UNITED STATES OF AMERICAv.

EMMANUEL BONAFE, Defendant.

19-CR-862 (VEC)|

Filed 03/26/2020

ORDER

VALERIE CAPRONI United States District Judge

*1 WHEREAS on January 30, 2020, the Court deniedDefendant Emmanuel Bonafe’s motion for reconsideration ofhis pretrial detention, Hearing Tr. (Dkt. 90) at 42;

WHEREAS the Court found that “no condition orcombination of conditions will reasonably assure ... the safetyof any other person and the community,” 18 U.S.C. § 3142(e)(1), based on the Government’s proffer that Mr. Bonafe hasbeen a high ranking member of the Latin Kings, who hasprofessed access to firearms and has participated in multipleassaults and robberies, see Hearing Tr. at 42;

WHEREAS Mr. Bonafe has submitted a second motion forreconsideration of his detention based on audio recordingsreceived during discovery, which in Defendants’ view, showthat one of the assaults discussed at the hearing was not a“slashing” (the term used at the hearing) because a knife might

not have been used during the attack, see Exs. 1, 3; 1

WHEREAS Mr. Bonafe also seeks reconsideration based onthe COVID-19 outbreak, which has reportedly hindered hisaccess to the law library and his ability to review materialsproduced during discovery, see Ex. 3;

WHEREAS Mr. Bonafe has waived his right to appear at ahearing and has requested that his motion be decided on thepapers; and

WHEREAS Mr. Bonafe, due to the nature of the crimescharged in the indictment, faces a rebuttable presumption that“no condition or combination of conditions will reasonably

assure the appearance of the person as required and the safetyof the community,” 18 U.S.C. § 3142(e)(3);

IT IS HEREBY ORDERED that Mr. Bonafe’s renewedapplication is DENIED. After reviewing the audio recordingsand considering all of defense counsel’s arguments, theCourt continues to find that no condition or combinationof conditions of release will reasonably assure the safetyof the community, and that Mr. Bonafe has not rebuttedthe presumption of detention. Even if one of the assaultsfor which Mr. Bonafe was present (and likely participatedin) did not involve a knife, a fact that is far from clear inthe audio excerpts, the record continues to show that Mr.Bonafe is a high-ranking and influential member of a violentorganization, who has himself participated in robberies andother acts of violence. See, e.g., Hearing Tr. at 25–29. TheCourt further finds that the impact of COVID-19 on Mr.Bonafe’s ability to review discovery materials in the lawlibrary does not compel his release; he is directed to raisehis right to review discovery in his case to the legal staff athis facility, and his counsel may file a letter motion with theCourt if the issue remains unresolved. Defendant’s remainingarguments were advanced and considered at the prior hearingand require no further exposition.

SO ORDERED.

Ex. 1

raiser&kenniff

ATTORNEYS AT LAW

*2 Steven M. Raiser

Thomas A Kenniff

Ethan D. Irwin

Anthony V. Falcone

Nipun Mawaha

300 Old Country Road, Suite 351

Mineola, New York 11501

Tel. 516-742-7600 • Fax 516-742-7618

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UNITED STATES OF AMERICA v. EMMANUEL BONAFE, Defendant., Slip Copy (2020)

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2

Of Counsel

Edward Fregosi

John J. Rivas

Amy Sklar

Patricia A. Craig

Anthony J. Colleluori

E. Gordon Haesloop

Bruce R. Connolly

March 24, 2020

VIAECF

Hon. Valerie E. Caproni

United States Courthouse

Southern District of New York

40 Foley Square, Room 240

New York, NY 10007

Re: United States of America v. Emmanuel BonafeIndictment No.: 19-00862-6 (VEC)

Second Letter Motion to Reconsider Detention Order, inLight of New Evidence and COVID-19 Pandemic

Dear Judge Caproni:

I am the attorney for Emmanuel Bonafe, a defendant underIndictment 19-00862-VEC-6. Mr. Bonafe was arraigned, infront of Magistrate, Hon. Barbara C. Moses, on December5, 2019 by Richard Rosenberg, CJA counsel. At which timea detention hearing was conducted and Mr. Bonafe wasremanded. On January 30, 2020, I appeared before yourHonor to request that Mr. Bonafe’s bail be reconsidered. Ourrequest was denied. I write to request that your decision ofJanuary 30, 2022, be reconsidered in light of information that

we have received during our review of the discovery providedto us by the Government.

During Mr. Bonafe’s arraignment, the Court stated that hewas being remanded, because of his being an alleged dangerto the community. One of the key “acts of violence” reliedupon by the Government and cited by the Magistrate at theinitial retention hearing was regarding an alleged slashinginvolving an individual identified as Smiley (December 5,2019 transcript at P30, Lines 16-19). Furthermore, at the bailreconsideration hearing held on January 30, 2020, the Courtrelied on the same rationale and the same information to denyMr. Bonafe’s bail. We are now asking your Honor to reviewthis remand status again due to the fact that the informationthis Court relied on was incorrect in regards to this “slashing”was incorrect, or at very best, grossly overstated.

Telephone recordings clearly demonstrate that there waslikely no slashing at all and if there was it did not involve Mr.Bonafe.

USAO_000055 (3:35-4:08) - call with Carmelo Velez – he,as a witness to the attack, indicates that it was Smiley whothrew the first punch and it was Smiley who attempted to cutBonafe (cutting his shirt).

USAO_000056 (3:05-3:20) – call with Smiley – Smiley statesthat he didn’t know if the wound on his face was a slice or apunch. The wound was “very thin and then opened up.”

Copies of these calls are attached for your review.

In light of this additional information and the ongoingCovid-19 pandemic, leaving all incarcerated inmates at risk tocontract the potentially deadly disease while living in closedquarters, we ask the Court to reconsider our bail applicationand release Mr. Bonafe on the bail package, pursuant to ourrequest filed on January 23, 2020.

Sincerely,

/s/

Steven M. Raiser

Ex. 2

U.S. Department of Justice

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UNITED STATES OF AMERICA v. EMMANUEL BONAFE, Defendant., Slip Copy (2020)

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3

United States Attorney Southern District of New York

*3 The Silvio J. Mollo Building

One Saint Andrew’s Plaza

New York, New York 10007

March 25, 2020

BY EMAIL

The Honorable Valerie E. Caproni

United States District Court Judge

Southern District of New York

40 Foley Square

New York, New York 10007

Re: United States v. Emmanuel Bonafe, a/k/a “Eazy,” 19Cr. 862 (VEC)

Dear Judge Caproni:

We write in response to the defendant’s March 24, 2020motion for this Court to reconsider its order that the defendantbe detained. This is the third time the defendant has movedfor bail. The purported new evidence raised by the defendantis not, in fact, new. It is not only consistent with therepresentations previously made to the Court, but it is alsoincomplete. We respectfully request that the Court deny thedefendant’s renewed motion for release on bail.

The Smiley Slashing

In the Court’s January 30, 2020 bail hearing, the Governmentproffered evidence of multiple acts of violence the defendantwas personally involved in as a high-ranking leader of theBlack Mob. One of these was the slashing of a rival gangmember named “Smiley” that occurred on June 10, 2017. Thedefendant contends that recorded telephone calls producedin discovery “clearly demonstrate that there was likely noslashing at all and if there was it did not involve Mr. Bonafe.”Mot. at 2. This is false.

New York City Police Department (“NYPD”) reports confirmthat on the afternoon of June 10, 2017, the NYPD did in factrespond to 911 calls about an attack in Thomas Jefferson Parkin Manhattan. When the police arrived, they found the victim,an individual who is known by law enforcement to go by thename “Smiley,” with a laceration on the left side of his face,bleeding and in pain. On June 19, 2017, a cooperating witness(“CW-1”) placed a recorded call to co-defendant CarmeloVelez, a/k/a “Jugg,” the First Crown of the Black Mob. Thedefendant’s motion selectively quotes only a portion of thatcall to suggest that Velez did not implicate the defendant.Contrary to the defendant’s characterization, Velez clearlytells the cooperating witness that the defendant—known inthe Black Mob by the alias “Eazy”—was involved in theattack.

When Velez described the attack to the CW-1, Velez clearlyplaced the defendant at the scene and involved, saying, “So,so now I walk, I’m with—Eazy’s right next to me, so I’mlike, ‘Yo Smiley, leave that shit for another day bro. You knowwhat I’m saying? We’re here to show love. We’re not tryingto start no static right now. Alright bro.’ I walk past, Eazygoes up to him like, ‘Yo my n****, what’s poppin’?’ CauseEazy heard he was talking shit. So he’s like, ‘Yo, um, youwas talkin’ spicy about me when you was locked up?’ He waslike, ‘Yeah,’ so Eazy’s like, ‘Alright, but why you never popbefore?’ ”

Velez then continued to describe the attack itself, saying,“Cause what happened was we popped it off. Boom, boom,boom, boom—the whole mob jumping the n****. There waslike fifteen of us. We cleaned this n**** out. N**** startrippin’ em. Boom, boom, boom, boom, boom, but this is ...alright we jumped him first. He tried to run. Somebody caughthim from behind and suplexed [PH] him off the top rope,boom! Hit the floor, n****s ripped ‘em, bing, bing, boom,boom, and we started kickin’ on top of the [UI]. Boom, boom,boom, boom, stomped him out. The widows was the onethat came and was like, ‘Stop! You’re about to kill him.’ Weleft that n**** bleedin’, the eyes rolled back, swollen so hisface could not see no more. Rips all over his fuckin’ shit,convulging .... We finished the first time, cause we jumpedhim like three times, we finished the first time, his eyes werealready pitch black bro. Ya understand what I’m tryin’ to say?His eye was pitch black.’ ”

*4 Approximately two years later—on May 7, 2019—thedefendant himself admitted his involvement in an attackon Smiley to a different cooperating witness (“CW-2”).

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© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4

CW-2 was wearing a recording device at the time. In thatconversation, the defendant talked about a prior incident inwhich “that n**** Smiley was there with a big bandage onhis face cause the shit, he just got, I just fired on the n****the day before.” And on December 18, 2018, the defendantsent a Facebook message about someone who had wrongedhim that read, “Imma do him like Smiley.”

This evidence shows that, contrary to the defendant’s motion,there was a violent slashing of a rival gang member namedSmiley, and the defendant was involved in that slashing.

Other Indications of Dangerousness

Of course the Smiley slashing was just one of the factors theCourt considered when finding that there were no conditionsof release that could reasonably ensure the safety of thecommunity. The Government refers the Court to the transcriptof the prior hearing for a more fulsome description, but thisincluded the fact that the defendant served in high-rankingpositions in the Black Mob, including the powerful positionof Third Crown, also known as the “Warlord.” It also includeda number of acts of violence that the defendant committedin addition to the Smiley slashing, including multiple violentrobberies and assaults; the fact that the defendant carried gunsand told other Black Mob members that he had a machine gunto sell; and the fact that the defendant sold large amounts ofoxycodone.

The defendant’s criminal history also indicated that thedefendant would be a danger to the community if released.He has repeatedly broken the law—even while on probation—and his lawful employment and family have not deterredhim from selling drugs and committing violence. His historyof defying court supervision and committing crimes evenwhile on probation showed that there were no conditions ofpretrial release that could reasonably assure the safety of thecommunity.

COVID-19

In the conclusion of his motion, the defendant briefly raisesthe issue of the COVID-19 outbreak. Though the defendantdevotes no more than a single sentence to the issue, theGovernment is of course very aware of the impact this virusis having on our community in general and the prisonsin particular. The defendant does not appear to have any

factors that make him high-risk, including age or pre-existinghealth conditions. Moreover, we understand that the virus hasmade pretrial supervision on bail more difficult, as PretrialServices is experiencing a shortage of electronic monitoringequipment, and in-person visits create a risk of exposure.If anything, the current circumstances increase, rather thandecrease, the risks that would be created by the defendant’srelease.

For these reasons and others, the Government requests thatthe defendant continue to be detained.

Respectfully submitted,

GEOFFREY S. BERMAN

United States Attorney

By [illegible text]

AUSA Adam S. Hobson

AUSA Elinor Tarlow

212-637-2484

Ex. 3

RAISER AND KENNIFF, PC

300 Old Country Rd., Suite 351, Mineola, NY 11501

Hon. Valerie E. Caproni

United States Courthouse

Southern District of New York

40 Foley Square, Room 240

New York, NY 10007

Re: United States v. Emmanuel Bonafe, a/k/a “Eazy,” 19Cr. 862 (VEC) Reply

Dear Judge Caproni:

The Government in their answer to our letter motion states,

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New York City Police Department(“NYPD”) reports confirm that on theafternoon of June 10, 2017, the NYPDdid in fact respond to 911 calls aboutan attack in Thomas Jefferson Park inManhattan. When the police arrived,they found the victim, an individualwho is known by law enforcementto go by the name “Smiley,” with alaceration on the left side of his face,bleeding and in pain

*5 There is no question that there was an attack. However,the above statement fails to demonstrate that the attackinvolved anyone cutting Smiley with a knife. There is nothingto demonstrate that the laceration was caused by a knife. Aswe indicated in our initial letter motion, Smiley himself wasunclear how the altercation occurred and instead focused onthe cut being thin. In fact, he indicates it was likely the resultof being struck and that wound opened up from continuedblows. In this case, there is no witness to say a knife was everseen being wielded against Smiley and not a single witnessthat said that the wound itself was necessarily indicative of aknife wound.

Based upon the above, it is now clear that there is zeroproof of a slashing being committed by Mr. Bonafe. TheGovernment has offered no evidence to refute this. Instead,the Government goes on to talk generally about an attack. TheGovernment states,

Velez clearly tells the cooperatingwitness that the defendant—known inthe Black Mob by the alias “Eazy”—was involved in the attack.

By making this statement they are in essence conceding thelack of evidence regarding a slashing with a knife (not merelyan physical confrontation), which they argued was evidenceof his alleged dangerousness.

The Government then attempts to put significance on the factthat Mr. Bonafe was present during the fight with Smiley. This

is a far cry from proof of slashing someone with a knife. Inthis regard the Government states,

When Velez described the attack to the CW-1, Velez clearlyplaced the defendant at the scene and involved, saying, “So,so now I walk, I’m with—Eazy’s right next to me, so I’mlike, ‘Yo Smiley, leave that shit for another day bro. Youknow what I’m saying? We’re here to show love. We’re nottrying to start no static right now. Alright bro.’ I walk past,Eazy goes up to him like, ‘Yo my n****, what’s poppin’?’Cause Eazy heard he was talking shit. So he’s like, ‘Yo, um,you was talkin’ spicy about me when you was locked up?’He was like, ‘Yeah,’ so Eazy’s like, ‘Alright, but why younever pop before?’ ”

There is nothing in that exchange to indicate anything otherthan mere presence at the scene of what turned into a fight. Itdoes not speak to anything about Mr. Bonafe being involvedin any way in a slashing. The Government goes on toquote, from that same call, stating virtually nothing aboutMr. Bonafe’s involvement either directly or indirectly in thebeating of Smiley and again absolutely nothing regarding aslashing.

Velez then continued to describe the attack itself, saying,“Cause what happened was we popped it off. Boom, boom,boom, boom—the whole mob jumping the n****. Therewas like fifteen of us. We cleaned this n**** out. N****start rippin’ em. Boom, boom, boom, boom, boom, but thisis ... alright we jumped him first. He tried to run. Somebodycaught him from behind and suplexed [PH] him off the toprope, boom! Hit the floor, n****s ripped ‘em, bing, bing,boom, boom, and we started kickin’ on top of the [UI].Boom, boom, boom, boom, stomped him out. The widowswas the one that came and was like, ‘Stop! You’re about tokill him.’ We left that n**** bleedin’, the eyes rolled back,swollen so his face could not see no more. Rips all overhis fuckin’ shit, convulging .... We finished the first time,cause we jumped him like three times, we finished the firsttime, his eyes were already pitch black bro. Ya understandwhat I’m tryin’ to say? His eye was pitch black.’

The Government then alleges that Mr. Bonafe, the day afterthe attack says, “I just fired on the n**** the day before.”The Government wants to assume this means that Mr. bonafestruck Smiley at some point, but If you line this up with whatthe witness said in the previous conversation, it is more likelyregarding what was said between the two and not a physicalaltercation. Again, nothing about Mr. Bonafe’s use of a knifein any regard against Smiley.

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*6 ‘Yo, um, you was talkin’ spicy about me when you waslocked up?’ He was like, ‘Yeah,’ so Eazy’s (Mr. Bonafe)like, ‘Alright, but why you never pop before?’ ”

Finally the Government indicates,

And on December 18, 2018, the defendant sent a Facebookmessage about someone who had wronged him that read,“Imma do him like Smiley.”

This too admits nothing regarding a slashing or use of a knife.The Government has been given every opportunity to cite theevidence to support the allegation that Mr. Bonafe slashedSmiley, or that a slashing even occurred. This is a contentionthey used, without evidence to support it, to imprison Mr.Bonafe before a trial. In addition, to say “Imma do him likeSmiley” also falls short of the promises made during the bailhearing. He is not quoted as saying, Imma gonna do him likeI did Smiley. It is instead a threat of what he might do toSmiley in the future, that he will do to Smiley what was doneto Smiley before, not that he was involved in what happenedto him previously. Again, however you want to categorize it,there is nothing about a knife or a slashing in that statementeither.

The Government then offers some additional allegations ofdangerousness.

the defendant served in high-ranking positions in the BlackMob, including the powerful position of Third Crown, alsoknown as the “Warlord.”

multiple violent robberies and assaults; the fact that thedefendant carried guns and told other Black Mob membersthat he had a machine gun to sell; and the fact that thedefendant sold large amounts of oxycodone.

These accusations are based solely on a cooperating witnessassertions. Mr. Bonafe was trailed and surveilled for years.There is no evidence to substantiate any of the assertionsof the cooperating/interested witnesses. After years ofsurveillance and recorded conversations, including videos ofmeetings: there is not one controlled buy involving gunsor drugs. There are no conversations admitting to drug orgun sales (only conversations stating what Mr. Bonafe couldprovide, nothing about him actually providing anything illicit)nothing about this alleged rank, no admissions. There are novideos showing Mr. Bonafe carrying a firearm, much lessselling one. There was some speculation that a video did existshowing a sale of a machine gun this is in fact not the case

(as such, was not mentioned in the Government’s answer tomy letter motion).

All of the above should give this Court pause and should leadto an acknowledgment that the proof regarding his allegeddangerousness is based on very weak and sometimes non-existent evidence. The Government wants to then have theCourt rely on his criminal history which is, I would argue, notsignificant.

The only charge involving a firearm occurred 10 years agowhen my client was a teenager. The assault the Governmentcited was a bar fight that happened nearly 10 years ago. Nordoes the fact that it happened at the tail end of probationaryperiod indicate a danger to society so serious that no bailconditions could render society safe from him. We ask thisCourt to keep in mind, there has been 8 years that have passedwith no supervision and there are no new arrests for assaultsor the like.

*7 Finally, the Government speaks to COVID-19. WhenI wrote my initial motion, I did not believe anything morethan the mention of this crisis would be needed to alert thisCourt to at least a serious consideration in releasing Mr.Bonafe. This is especially true in a case like this, where a keypiece of evidence the Government set forth was exposed asinsufficient to support their contentions for keeping him inremand status.

As to the very real crisis regarding COVID-19, every inmateis a risk to literally the entire prison population, includingpersonnel. If one gets it, the potential to spread quickly isimmense. This virus is dangerous for all those infected, notjust those in a high-risk category. It also creates a largeobstacle to Mr. Bonafe’s ability to assist in his own defense.No one from my office can visit him. As the Governmentnoted, in person visits create a risk of exposure and I havea young child at home and an elderly mother who is veryinvolved in child care for my daughter. I cannot expose eitherof them to the conditions at the facility since there is a greatlikelihood that someone in that facility will contract the virusand potentially give it to me.

In addition, my client is no longer permitted library hours,which was the only time he could review the voluminousdiscovery in this case. Now he has nothing, no access atall. Furthermore, if the ankle bracelet is a prerequisite to hisrelease then pre-trial services should make every effort to getone. We should not give up on the possibility that they could

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do just that. In any event, this Court should consider thatthe bail package proposed by my office would be enough toensure his return to court and the safety of the community.The danger right now is in confinement. Once he is out, hecan isolate himself at his home for 2 weeks, along with hisfinance, as her parents care for their child.

Sincerely,

/s/

Steven M. Raiser

All Citations

Slip Copy, 2020 WL 1467146

Footnotes1 The parties’ submissions were not filed on ECF and were instead emailed directly to the Court. Neither side’s submission

contains a request for sealing. To promote public access to judicial documents, those submissions are attached hereinas Exhibits 1, 2, and 3.

End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.

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UNITED STATES OF AMERICA, Plaintiff, v. HENRY CLARK,..., Slip Copy (2020)

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

2020 WL 1446895Only the Westlaw citation is currently available.

United States District Court, D. Kansas.

UNITED STATES OF AMERICA, Plaintiff,v.

HENRY CLARK, Defendant,

Case No. 19-40068-01-HLT|

03/25/2020

Angel D. Mitchell, U.S. Magistrate Judge

MEMORANDUM AND ORDER

*1 This matter comes before the court on Defendant HenryClark’s Motion for Temporary Release from Custody (ECFNo. 144). On August 30, 2019, the court ordered Mr. Clarkdetained pending trial, and he has been in custody since. Mr.Clark now seeks temporary release pursuant to 18 U.S.C. §3142(i) for what he contends are compelling reasons relatedto the recent COVID-19 global pandemic. (ECF No. 144.)According to Mr. Clark, his present status in custody posesa lethal threat to him because he is a diabetic and doesnot have an opportunity for social distancing. The court issympathetic to his concerns, but Mr. Clark is not alone.COVID-19 presents serious ongoing concerns for millionsof people, especially those with certain underlying medicalconditions. On balance, Mr. Clark has not shown a sufficientlycompelling reason that his release is necessary, particularlyin light of the court’s prior finding that he is a flight risk anda risk of harm to others. He has not made even a thresholdshowing that his proposed release plan—which relies only onisolated aspects of public health officials’ recommendationswhile ignoring others— would necessarily better addresshis health concerns than if he were to remain in custody.Furthermore, his proposed release plan would likely increasethe risk of harm to others. The court therefore summarilydenies Mr. Clark’s motion.

I. BACKGROUNDMr. Clark is charged with conspiring to manufacture,distribute, and possess with the intent to distribute substantialquantities of fentanyl and heroin (and derivatives thereof). Heis the lead defendant in a nine-person indictment that alleges,among other things, that these controlled substances resulted

in a user’s death. (ECF No. 1, at 3.) On August 27, 2019,he was arrested in Chicago. On August 30, he appeared fora detention hearing in the Northern District of Illinois beforeMagistrate Judge Maria Valdez. She ordered him detainedpending trial based on her finding that he poses a flight riskand a risk of danger to the community. (ECF No. 49-3.)

Mr. Clark is currently housed at the Leavenworth DetentionFacility operated by CoreCivic, which is located inLeavenworth, Kansas. He seeks an order for temporaryrelease from custody for what he contends are compellingreasons—namely, that he is a 43-year-old insulin-dependentdiabetic, which he contends puts him at an increasedrisk for contracting the SARS-CoV-2 virus and developingcomplications from the disease it causes, COVID-19. Henotes that the Centers for Disease Control and Prevention(“CDC”) identifies certain categories of individuals at ahigher risk of severe illness, including those with seriousunderlying medical conditions such as diabetes. Mr. Clarkalso states that his diabetes puts him at an increased riskfor contracting the virus (although, as explained below, helacks evidence to support this assertion). He also contends thathe does not have the option of adhering to CDC guidelinesrecommending social distancing while he is incarcerated,making an outbreak likely. And he questions the facility’sability to effectively manage an outbreak. Among otherthings, he notes that, while incarcerated, he has reportedblood-sugar levels over 300 mg/dL on multiple occasionsand that medical staff have struggled to address his diabetes.He also states that his attorney contacted CoreCivic and wasadvised that COVID-19 testing was not currently available atthe facility.

*2 Mr. Clark proposes that the court release him to hisresidence in Chicago, where he previously resided with his73-year-old mother. He states that his brother has agreedto drive from Chicago to Leavenworth to pick him up andtransport him back home to Chicago.

II. ANALYSIS 1

Mr. Clark moves for temporary release pursuant to 18 U.S.C.§ 3142(i) of the Bail Reform Act. It provides in relevant partas follows:

The judicial officer may, bysubsequent order, permit thetemporary release of the person,

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in the custody of a United Statesmarshal or another appropriate person,to the extent that the judicialofficer determines such release tobe necessary for preparation of theperson’s defense or for anothercompelling reason.

§ 3142(i) (emphasis added). A defendant bears the burdenof establishing circumstances warranting temporary releaseunder § 3142(i). See United States v. Buswell, No. 11-CR-198-01, 2013 WL 210899, at *5 (W.D. La. Jan. 18, 2013)(collecting cases).

Most courts addressing a motion for temporary release under§ 3142(i) have done so in the context of evaluating thenecessity of the defendant assisting with preparing his orher defense. See, e.g., Buswell, 2013 WL 210899, at *5;United States v. Dupree, 833 F. Supp. 2d 241, 247 (E.D.N.Y.2011); United States v. Jeffries, No. 3:10-CR-100, 2011 WL182867, at *4 (E.D. Tenn. Jan. 20, 2011); United Statesv. Hazelwood, No. 1:10 CR 150, 2011 WL 680178, at *3(N.D. Ohio Feb. 16, 2011); United States v. Petters, No. CR.08-364(RHK/AJB), 2009 WL 205188, at *2 (D. Minn. Jan.28, 2009); United States v. Birbragher, No. 07-CR-1023-LRR, 2008 WL 2246913, at *1 (N.D. Iowa May 29, 2008).This extends to the current COVID-19 pandemic inasmuchas at least one court has considered the pandemic’s impacton counsel’s difficulties communicating with the defendant.See, e.g., United States v. Stephens, --- F. Supp. 3d ---, 2020WL 1295155, at *2 (S.D.N.Y. 2020) (finding “the obstaclesthe current public health crisis poses to the preparation of theDefendant’s defense constitute a compelling reason under 18U.S.C. § 3142(i)”).

There is limited authority as to when temporary releaseis justified under § 3142(i) based on “another compellingreason,” although a defendant’s medical condition maypresent that compelling reason in a particular case. See UnitedStates v. Rebollo-Andino, 312 Fed. App’x 346, 348 (1st Cir.2009) (noting the defendant could seek temporary releaseunder § 3142(i) for medical reasons). Courts have typicallygranted relief under § 3142(i) only “sparingly to permita defendant’s release where, for example, he is sufferingfrom a terminal illness or serious injuries.” United Statesv. Hamilton, No. 19-CR-54-01, 2020 WL 1323036, at *2(E.D.N.Y. Mar. 20, 2020). As but one example where acourt has granted release based on medical issues, the district

court in United States v. Scarpa permitted the defendant tobe released under the 24-hour guard of the United StatesMarshal Service (“USMS”) at his own expense because thedefendant had sustained a gunshot wound that destroyedhis left eye and surrounding area of his face and skull, hewould “shortly die” from terminal AIDS, and correctionalauthorities could no longer manage his medical conditions.815 F. Supp. 88 (E.D.N.Y. 1993). In another case, a districtcourt ordered the release of a defendant who had sustainedmultiple gunshot wounds, was partially paralyzed, could notwalk, had lost some arm function, had a wound the size ofa fist, and required 4-5 contracted security guards on a dailybasis to supervise him; the Bureau of Prisons would not takecustody of him because it could not provide the medical carethat he required. United States v. Cordero Caraballo, 185 F.Supp. 2d 143, 144-47 (D.P.R. 2002). Therefore, Mr. Clarkproperly seeks relief based on COVID-19 concerns underthe “necessary...for another compelling reason” prong of §3142(i).

*3 Other district courts have considered COVID-19concerns in the context of the more commonly used§ 3142(f) pretrial detention framework, including therelated subsections § 3142(e)(2)-(3) (statutory rebuttablepresumptions) and § 3142(g) (Bail Reform Act factors).For example, the district court in United States v. Martinconsidered the defendant’s argument concerning his medicalconditions (asthma, high blood pressure, and diabetes) inlight of the COVID-19 pandemic in a § 3142(f) analysis.2020 WL 1274857, at *4. However, the court appears tohave considered this issue in the § 3142(f) analysis becausethe defendant raised the argument in that procedural context.United States v. Stephens is another case in which thedistrict court considered speculative COVID-19 concerns—this time, in the context of a motion to reopen detentionunder § 3142(f) based on a change in circumstances. 2020WL 1295155 at *2 (reasoning that substantial challenges“would almost certainly arise” if there was an outbreak at theMetropolitan Correctional Center in New York City). But thecourt did not reopen detention based solely on COVID-19concerns. Rather, the court first relied on new informationthat weakened the Government’s case that the defendantpossessed the firearm in question, and thus undermined thecourt’s prior finding as to whether the defendant posed adanger to the community. Id. at *1.

A defendant’s concerns that he or she would face heightenedCOVID-19 risks if incarcerated would not typically factorinto a § 3142(f) analysis, which focuses on whether the court

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can fashion conditions of release that will reasonably assurethe defendant is not a risk of nonappearance or a risk ofharm to any others or the community. The risk of harm tothe defendant does not usually bear on this analysis. Rather,whether a defendant’s particular circumstances warrantrelease in light of the COVID-19 pandemic ought to moreproperly considered on a case-by-case basis under the“another compelling reason” prong of § 3142(i), as the districtcourt did in Hamilton, 2020 WL 1323036, at *2. There,the court denied temporary release based on the COVID-19pandemic where the defendant was of advanced age andsuffered from dementia and a history of stroke and heart attackbecause, among other things, there had been no reportedincidents of COVID-19 within the facility where he wasbeing housed and the Bureau of Prisons “is taking system-wide precautions to mitigate the possibility of an infectionwithin its facilities.” Id. The mere possibility of an outbreak atthe facility was not a compelling reason to justify his release.Id.

The court is mindful of the unprecedented magnitude of theCOVID-19 pandemic and the extremely serious health risksit presents. But, in that context, a defendant should not beentitled to temporary release under § 3142(i) based solelyon generalized COVID-19 fears and speculation. Rather,the court must make an individualized determination as towhether COVID-19 concerns present such a compellingreason in a particular case that temporary release isnecessary under § 3142(i). In making that determination, theundersigned will evaluate at least the following factors: (1)the original grounds for the defendant’s pretrial detention,(2) the specificity of the defendant’s stated COVID-19concerns, (3) the extent to which the proposed release planis tailored to mitigate or exacerbate other COVID-19 risksto the defendant, and (4) the likelihood that the defendant’sproposed release would increase COVID-19 risks to others.The court will not necessarily weigh these factors equally,but will consider them as a whole to help guide the court’sdetermination as to whether a “compelling reason” exists suchthat temporary release is “necessary.” § 3142(i).

B. The Original Grounds for the Defendant’s PretrialDetentionThe court first considers the original grounds forthe defendant’s pretrial detention. See Hamilton, 2020WL 1323036, at *1-*2 (first considering the rebuttablepresumption under § 3142(e) before considering whetherthe COVID-19 pandemic warranted temporary release under§ 3142(i)); Buswell, 2013 WL 210899, at *5 (observing

that “the facts surrounding the underlying reasons forthe defendant’s detention are relevant to the [§ 3142(i)]analysis”); see also Dupree, 833 F. Supp. 2d at 247(considering the circumstances leading to the defendant’srevocation of pretrial release). After all, if a defendant isseeking temporary release under § 3142(i), the court hasalready found that pretrial detention was warranted on thegrounds that, e.g., no condition or combination of conditionswould reasonably assure the defendant would appear asrequired and/or not pose a risk of harm to others. Thesereasons should be taken into consideration in determiningwhether a defendant has presented such compelling reasonsfor temporary release that they effectively override or atleast sufficiently counterbalance the findings that originallyjustified the pretrial detention order.

*4 In this case, Mr. Clark is a high-risk defendant. Theneed for pretrial detention is not even a close call. MagistrateJudge Valdez originally ordered him detained pending trialbecause he was both a risk of flight and a danger to thecommunity. These findings are amply supported by therecord. He is the lead defendant named in an indictment wherea grand jury found probable cause to believe that he andothers were engaged in a drug-trafficking conspiracy caseinvolving substantial quantities of fentanyl and heroin (andderivatives thereof) that resulted in the reasonably foreseeabledeath of an individual who died as a result of injecting thecontrolled substances manufactured as part of the conspiracy.He is facing twenty years to life in prison. As such, arebuttable presumption arises under § 3142(e)(3)(A) that nocondition or combination of conditions will reasonably assurehis appearance or the safety of any other person or thecommunity.

The evidence against him is strong. The indictment arose froma lengthy federal investigation of large-scale drug traffickingoperation in Manhattan, Kansas, and the surrounding area,with ties to Wichita, Kansas City, Topeka, Chicago, andelsewhere. According to the Government’s proffers, Mr.Clark is a Chicago-based drug trafficker who is the primaryorganizer/leader for the drug trafficking organization. (ECFNo. 5, at 8.) Search warrants, surveillance, and eyewitnesstestimony revealed that he would bring drugs from Chicago,often traveling by Amtrak or bus, to the Manhattan area wherehe would sell them to local distributors and trade them withother co-conspirators for sex. (Id. at 14-17.) According torecords obtained from law enforcement officers in Chicago,Mr. Clark is a suspected member of the Gangster DisciplesCriminal Street Gang that engages in drug trafficking as its

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primary revenue stream. (Id. at 18.) He is forty-three yearsold and has a violent criminal history spanning nearly hisentire adult life. He has been convicted of attempted murder,aggravated battery with a firearm, possession of a firearm,felony unlawful restraint, domestic battery, and felonyproperty damage. (Id.) On one prior occasion involving aconfrontation with a law enforcement officer, Mr. Clark toldthe officer that he had been involved with guns and that hewould “roll a mother f****r” (understood to mean he woulduse violent force). (Id.)

C. The Specificity of the Defendant’s Stated COVID-19ConcernsThe court turns next to the defendant’s stated COVID-19concerns. Mr. Clark raises legitimate concerns about hisunderlying health conditions. He is a diabetic. Somepeople are at higher risk of becoming seriously illfrom COVID-19, including those with serious underlyingmedical conditions such as heart disease, lung disease, anddiabetes. See CENTERS FOR DISEASE CONTROL ANDPREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html (lastvisited Mar. 23, 2020). Citing the CDC’s guidance,Mr. Clark misconstrues that this puts him at anincreased risk for “contracting” COVID-19. However,there is currently no evidence to support this proposition.See generally id. (cited by Mr. Clark and discussinggroups at risk for serious complications). “The problempeople with diabetes face is primarily a problem ofworse outcomes, not greater chance of contracting thevirus.” AMERICAN DIABETES ASSOCIATION, https://www.diabetes.org/diabetes/treatment-care/planning-sick-days/coronavirus. So it is more accurate to say that ifMr. Clark contracts the COVID-19 virus, his diabetesputs him at a “higher risk of getting very sick fromthis illness.” CENTERS FOR DISEASE CONTROL ANDPREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html (lastvisited Mar. 23, 2020). He has therefore established a specificand particular concern that his status as a diabetic puts him atan increased risk for experiencing severe illness if he were tocontract COVID-19.

*5 The remainder of his arguments about being incarceratedare general and speculative. Mr. Clark argues that heis at a greater risk of contracting COVID-19 given thelack of opportunity for social distancing at CoreCivic’sLeavenworth facility. Unquestionably, avoiding crowdsand social distancing are recommended to reduce the

risk of transmission. See CENTERS FOR DISEASECONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/get-ready.html (lastvisited Mar. 20, 2020) (setting forth steps to reduce therisk of transmission); THE PRESIDENT’S CORONAVIRUSGUIDELINES FOR AMERICA: 15 DAYS TO SLOWTHE SPREAD, https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20 coronavirus-guidance_8.5x11_315PM.pdf (last visited Mar. 20, 2020)(recommending avoiding social gatherings of ten or morepeople). But Mr. Clark admits that he is unaware of anyknown cases of

COVID-19 at the facility, and he instead argues that anoutbreak is inevitable. (ECF No. 144.) This argument isspeculative. The facility is reportedly taking reasonablerecommended precautions, including having medical staffscreen inmates during intake for COVID-19 risks, isolatingthose deemed to be high risk, and promoting otherrecommended hygiene habits.

CORECIVIC STATEMENT ON COVID-19PROTECTION,

https://www.corecivic.com/hubfs/ files/CoreCivic%20Response%20to%20COVID-1.pdf (last visited Mar.23, 2020). It is implementing CDC and World HealthOrganization guidelines, purchasing COVID-19 test kits,communicating best practices for personal hygiene to preventthe spread, encouraging employees to stay home if they areill, and developing plans to separate high-risk individuals whoare more susceptible to COVID-19. See CORECIVIC: HOWCORECIVIC IS

MANAGING COVID-19 https://www.corecivic.com/hubfs/_files/CoreCivic%20Response%20to%20COVID-1.pdf(last visited Mar. 23, 2020). Furthermore, it changed itsvisitation policies to suspend social visits and minimizein-person legal visits. See CORECIVIC: SOCIALVISITATION SUSPENSION INFORMATION, https://www.corecivic.com/hubfs/_files/Visitation%20Suspension%20Info%20-%20Facility-wide.pdf (last visited Mar.20, 2020). The court therefore finds his concerns aboutCoreCivic to be unsupported. See, e.g., Hamilton, 2020WL 1323036, at *2 (denying release where there had beenno reported incidents of COVID-19 within the facilitywhere the defendant was being housed and the Bureau ofPrisons “is taking system-wide precautions to mitigate thepossibility of an infection within its facilities”).

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The only datapoint Mr. Clark identifies in support of hisargument that an outbreak is inevitable is his counsel’srepresentation that she was advised by “medical staff”at CoreCivic that the facility does not have availableCOVID-19 testing. (ECF No. 144, at 3.) The motion doesnot identify the staff member or members or specify whenthe information was communicated to counsel, leaving thecourt with no way to evaluate the accuracy or timelinessof the information. But, even if the facility does not haveCOVID-19 testing available, this is an ongoing problem thatis not unique to prison systems. See, e.g., Robert Kuznia,et al, SEVERE SHORTAGE OF SWABS AND OTHERSUPPLIES HAMPER CORONAVIRUS TESTING, https://www.cnn.com/2020/03/18/us/coronovirus-testing-supply-shortages-invs/index.html (last visited Mar. 23, 2020). Thisis a problem in Chicago, too, which is where Mr. Clarkproposes to go if he is temporarily released from custody.See Angie Leventis Lorgos, et al., ADVOCATE HOSPITALSPAUSE DRIVE-UP CORONAVIRUS TESTING, CITINGNATIONAL SHORTAGE OF TEST KITS, ChicagoTribune https://www.chicagotribune.com/coronavirus/ct-coronavirus-testing-suspended-advocate-hospitals-20200320-2kt3g6s3dnho3ctiffx2apg3ky-story.html (last visited Mar. 23, 2020).

*6 In sum, Mr. Clark’s diabetes presents a specificCOVID-19 risk, but the remainder of his arguments aboutincarceration are too speculative or generalized to favorrelease. Mr. Clark cannot predict the extent to whichCOVID-19 cases might arise at the facility any more thanmany Americans can predict how they might be exposedto the virus. He also cannot predict how CoreCivic mightrespond to an outbreak any more accurately than manyAmericans can predict how their local hospitals mightrespond. And while inmates may not be able to fully adhere tooptimal social distancing guidelines, these circumstances aregeneralized to all individuals in the prison system and are notunique to Mr. Clark. He is at a facility that has implementedmeaningful measures to try to minimize the likelihood of thevirus entering the facility.

D. The Extent to Which the Proposed Release Plan isTailored to Mitigate or Exacerbate the Defendant’sOverall COVID-19 RisksThe Bail Reform Act allows for temporary release only ifthe court determines that such release is “necessary” fora compelling reason. 18 U.S.C. § 3142(i). In the contextof COVID-19, this means that the proposed temporaryrelease plan should be tailored to mitigate the defendant’s

overall COVID-19 risks, not exacerbate them. Thus, the courtevaluates the extent to which the proposed release plan istailored to mitigate or exacerbate the defendant’s overallCOVID-19 risks.

Here, Mr. Clark’s proposed release plan addresses onlyisolated aspects of public health officials’ recommendationswhile ignoring other risk factors that would arise if hewere released from custody. Mr. Clark has not set fortha record establishing that, even if someone at the facilitywere to contract COVID-19, CoreCivic is unprepared tocontain the virus or care for those who may becomeinfected. To the contrary, CoreCivic provides around-the-clock medical care, is staffed and trained to containor treat the virus, and communicates with governmentpartners and health agencies to keep those in its caresafe and healthy. See CORECIVIC: HOW CORECIVIC ISMANAGING COVID-19, https://www.corecivic.com/hubfs/_files/CoreCivic%20Response%20to%20COVID-1.pdf (lastvisited Mar. 20, 2020). The record is void of any informationsuggesting that the facility would be unable to renderappropriate medical treatment to defendant were he to becomeill. Mr. Clark alleges that his blood sugar levels have beenhigh while he is incarcerated, but he provides only conclusoryallegations in this regard. He does not provide specifics for thecourt to evaluate the extent to which the facility (versus Mr.Clark himself) is responsible for not managing his diabetesand/or the extent to which his diabetes is under control. Thus,Mr. Clark’s unexplained, conclusory allegations that he mayhave experienced negative outcomes managing his diabetes atsome point during his incarceration does not rise to the levelof justifying temporary release based on COVID-19 concerns.

Mr. Clark also does not address the extent to which hisrisks could be exacerbated if he returns to Chicago. Heproposes home detention with GPS monitoring. However,he offers no evidence to explain how living with hismother mitigates the risk of infection. For example, hedoes not explain who else has or will live in or frequentthe home or identify any screening practices or concreteCOVID-19 precautions being taken there. He therefore offersnothing more than speculation that home detention wouldbe less risky than living in close quarters with othersat CoreCivic, which at least has screening practices andother reasonable COVID-19 precautions in place. He alsodoes not address the risk of exposure while en route fromCoreCivic’s Leavenworth facility to Chicago, which is aneight-hour drive during which he and his brother wouldinevitably have to make occasional stops for necessities. And

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he does not address, once there, the Chicago health caresystem’s capacity to provide him with adequate treatment ifhe were to contract the virus. In contrast, if he remains atCoreCivic he has access to around-the-clock medical care,the facility is staffed and trained to contain or treat the virusif necessary, and it collaborates with government partnersand health agencies to keep its employees and those in itscare safe and healthy. CORECIVIC: HOW CORECIVIC ISMANAGING COVID-19, https://www.corecivic.com/hubfs/_files/CoreCivic%20Response%20to%20COVID-1.pdf (lastvisited Mar. 23, 2020). CoreCivic has ample motivation toprevent any outbreak at the facility and, even if an outbreakoccurs, to contain and manage it for the well being of allinvolved.

*7 On balance, the court is persuaded that this factor isneutral. It is speculative to predict whether Mr. Clark is saferin terms of his overall COVID-19 risks whether he is incustody or temporarily released to live with his mother inChicago.

E. The Likelihood that the Defendant’s ProposedRelease Plan Would Increase COVID-19 Risks to OthersIn considering temporary release under § 3142(i) based oncircumstances related to COVID-19, it is also appropriate toconsider the likelihood that the defendant’s proposed releaseplan would increase COVID-19 risks to others, particularlyif the defendant is likely to violate conditions of release. Adefendant who is unable to comply with conditions of releaseposes potential risks to law enforcement officers who arealready tasked with enforcing shelter-in-place orders in manycities and counties, pretrial services officers who come intocontact with the defendant for supervision, and others if thatindividual is taken back into custody.

In this case, these considerations do not support release.Judge Valdez originally detained defendant because he wasboth a risk of flight and a danger to the community. Heis the lead defendant in a drug-trafficking conspiracy casewhere a grand jury found probable cause to believe thatan individual died as a result of injecting the controlledsubstance manufactured as part of the conspiracy. Given the §3142(f) and (g) considerations discussed previously, the courtbelieves he will likely violate any conditions of release thecourt may impose if the court were to issue a temporary-release order. As another court observed:

[w]hile the location monitoring thathe proposed may offer usefulinformation about where he is, itprovides little useful informationabout what he is doing, and theready accessibility of smart phonesand digital communication deviceswould make it all too easy for himto resume his involvement (directlyor through confederates) in thedistribution of controlled substanceswithout detection.

Martin, 2020 WL 1274857, at *4. Here, Mr. Clark has beenunable or unwilling to remain law-abiding for most of hisadult life. The court has no reason to believe that he wouldsuddenly become compliant now.

Meanwhile, supervising such a high-risk offender out in thecommunity will place pretrial services officers at heightenedrisk of contracting the virus. “[L]ocation monitoring is nota limitless resource, nor is its installation and monitoring bythe United States Pretrial Services officers without risk tothose personnel (who must be trained and certified to installlocation monitoring) given the current recommendationsregarding implementation of social distancing.” Id. And,when Mr. Clark violates his conditions of release (ashe likely will), law enforcement officers will be forcedto expend valuable resources during a national crisis totake him back into custody in Chicago and return himto the District of Kansas, both increasing the risk tothem of contracting and spreading COVID-19 and furtherincreasing the risk to the prison population when he inevitablyreturns to the facility. See CENTERS FOR DISEASECONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html (lastvisited Mar. 19, 2020) (urging Americans to consider the riskof travel and noting that travel may put household contacts atan increased risk of contracting the virus). These additionalconsiderations weigh in favor of denying the motion.

III. CONCLUSION*8 On balance, Mr. Clark has not established compelling

reasons sufficient to persuade the court that temporary releaseis necessary. He has established only that his status as a

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diabetic puts him at an increased risk for experiencing severeillness if he were to contract COVID-19. His argumentsregarding the risk of an outbreak at his facility is speculative.Furthermore, he has not established that his proposed releaseplan would necessarily alleviate his overall COVID-19risks. To the contrary, it appears that, if he were released,he simply would be trading one set of problems (e.g.,reduced opportunities for social distancing at CoreCivic) foranother set of problems (e.g., contamination risks associatedwith travel and being in an uncontrolled environment, andpotentially reduced access to quality healthcare). Meanwhile,his proposed release plan would place pretrial servicesofficers at risk in supervising him and, if and when thetemporary release inevitably ends (whether because theCOVID-19 risks subside or because he violates his bond),it will place the USMS officers at risk in re-apprehendinghim and the facility at risk when he eventually reenters itafter having had abundant opportunity for contamination. On

balance, Mr. Clark has not established a compelling reasonthat temporary release is necessary.

IT IS THEREFORE ORDERED that Defendant HenryClark’s Motion for Temporary Release from Custody (ECFNo. 144) is denied.

IT IS SO ORDERED.

Dated March 25, 2020, at Topeka, Kansas.

s/ Angel D. Mitchell

Angel D. Mitchell

U.S. Magistrate Judge

All Citations

Slip Copy, 2020 WL 1446895

Footnotes1 Pursuant to Administrative Order 2020-3, all nonemergency criminal hearings are postponed pending further order of the

court. Because of the time-sensitive nature of the relief requested and in accordance with Administrative Order 2020-3,the court rules without holding a hearing on the motion. See, e.g., United States v. Martin, --- F. Supp. ---, 2020 WL1274857, at *3 (D. Md. 2020) (recognizing the Bail Reform Act is silent about whether the defendant is entitled to an in-court hearing after a detention order has issued and declining to grant one in an “endeavor to comply with the federaland State recommendations about avoiding bringing people together in groups larger than ten persons, as well as ruleexpeditiously”).

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2020 WL 1323036Only the Westlaw citation is currently available.

United States District Court, E.D. New York.

UNITED STATES of America,v.

Darin HAMILTON, Defendant.

19-CR-54-01 (NGG)|

Signed 03/20/2020

Attorneys and Law Firms

Tanya Hajjar, U.S. Attorney's Office, Brooklyn, NY, forUnited States of America.

David Stern, Rothman, Schneider, Soloway & Stern, P.C.,New York, NY, for Defendant.

ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

*1 On January 31, 2019, Defendant Darin Hamilton wasindicted on two counts of murder while engaged in narcoticstrafficking in violation of 21 U.S.C. § 848(e)(1)(A) and onecount of conspiracy to murder while engaged in narcoticstrafficking in violation of 21 U.S.C. § 846. (Indictment (Dkt.1).) On February 6, 2019, Magistrate Judge Robert M. Levydenied Mr. Hamilton’s application for bail, concluding thatno combination of conditions would ensure Mr. Hamilton’sappearance and protect the safety of the community. (Orderof Det. (Dkt. 9).) On March 16, 2020, Mr. Hamilton filedan emergency bail motion, arguing that, in light of Mr.Hamilton’s advanced age and medical conditions (whichinclude dementia and a history of stroke and heart attack),the ongoing COVID-19 pandemic constituted a “compellingreason” to justify his release within the meaning of 18U.S.C. § 3142(i). (Emergency Mot. for Bond (“Mot. 1”)(Dkt. 42); see also Gov't Letter in Opp. (“Opp.”) (Dkt. 43).)The following day, District Judge Margo K. Brodie deniedthat motion after a hearing, concluding that, in the absenceof any cases of COVID-19 in the Metropolitan DetentionCenter (“MDC”) and any recent history of physical ailments,Mr. Hamilton was not “any more at risk than most of theinmates who are similarly situated.” (Tr. of Mar. 17, 2020Bail Hr'g. (Dkt. 44) at 9:12-13.) Judge Brodie further declined

to disturb the determination that Mr. Hamilton constituted adanger to the community and directed Mr. Hamilton to “makethat application to [this court].” (Id. at 11:4-5; see also id.11:11-21.)

Now before the court is Mr. Hamilton’s renewed emergencymotion for bond. (See Letter Mot. for Bond (“Mot. 2”)(Dkt. 45); Supp. Letter Mot. for Bond (“Supp. Mot.”)(Dkt. 47).) The Government opposes the application for thereasons set forth in its opposition to Mr. Hamilton’s prioremergency application. (See Gov't Letter in Opp. (Dkt. 46).)Mr. Hamilton has waived his right to a hearing on thismotion. (Supp. Mot.) For the following reasons, the motionis DENIED.

Because Mr. Hamilton has been charged with violations of theControlled Substances Act for which the maximum penalty islife imprisonment or death, there is a rebuttable presumptionthat Mr. Hamilton poses both a danger to the community anda flight risk. 18 U.S.C. § 3142(e)(3). Where the presumptionof detention attaches, the “defendant bears a limited burdenof production—not a burden of persuasion—to rebut thepresumption by coming forward with evidence that he doesnot pose a danger to the community or a risk of flight.” UnitedStates v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001).

Notwithstanding this limited burden, Mr. Hamilton does notseriously endeavor to rebut the presumption that he posesa danger to the community beyond noting that the crimesalleged in the indictment were committed nearly 30 years agoand the fact that, since his release from state custody in 2003,Mr. Hamilton’s interactions with the criminal justice systemhave been few and limited to relatively minor offenses (Supp.Mot. 2 at 2.) Notwithstanding, the court concludes that Mr.Hamilton has not met his burden to rebut the presumptionof danger to the community that attaches based on the actswith which Mr. Hamilton has been charged, i.e. murderingtwo people in public places, in one incident himself, and in theother incident by hiring others. That presumption is furtherbolstered by Mr. Hamilton’s lengthy criminal record, as setforth in the sealed pretrial services report.

*2 And, in any event, even if the court were to agreethat Mr. Hamilton had successfully rebutted the presumptionthat he constitutes a danger to the community and that theGovernment had failed to meet its evidentiary burden toestablish the same, Mr. Hamilton has not presented evidenceto rebut the presumption that he poses risk of flight. Thatpresumption is particularly strong in this case given hiscriminal history and the fact that he faces a maximum penalty

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of life imprisonment or death. See United States v. Jackson,823 F.2d 4, 7 (2d Cir. 1987) (“[P]ossibility of a severesentence” and “extensive criminal history” both factors thatweigh in favor of detention). The court also notes that Mr.Hamilton’s prior conviction for witness intimidation furthersupports pretrial detention. See 18 U.S.C. § 3142(f)(2)(B).

Finally, Mr. Hamilton argues that, in light of his advanced ageand medical conditions, the ongoing COVID-19 pandemicconstitutes “another compelling reason” to permit histemporary release under 18 U.S.C. 3142(i)(4). (Mot. 1 at 8-10;Supp. Mot.) This provision has been used sparingly to permita defendant’s release where, for example, he is sufferingfrom a terminal illness or serious injuries. See, e.g., UnitedStates v. Scarpa, 815 F. Supp. 88 (E.D.N.Y. 1993) (permittingrelease of defendant suffering from terminal AIDS that couldno longer be managed by correctional authorities); see alsoUnited States v. Stephens, ––– F. Supp. 3d ––––, 2020 WL1295155 (S.D.N.Y. Mar. 19, 2020) (permitting release ofdefendant due to COVID-19 pandemic). While the court ismindful of Mr. Hamilton’s concerns, it does not believe thatthe COVID-19 outbreak—at this point in time—constitutes

a sufficiently compelling reason to justify release under thecircumstances of this case.

Mr. Hamilton does appear to fall within a higher-risk cohortshould he contract COVID-19; however, he does not sufferfrom any pre-existing respiratory issues and his medicalconditions appear to have been well managed over the courseof the past fourteen months of incarceration. Further, andperhaps most importantly, as of this writing, there havebeen no reported incidents of COVID-19 within MDC, andthe Bureau of Prisons is taking system-wide precautions tomitigate the possibility of infection within its facilities. Assuch, given the risks that Mr. Hamilton’s release would pose,the court concludes that the possibility of an outbreak at MDCis not a “compelling circumstance” justifying his release.

Accordingly, Mr. Hamilton’s (Dkt. 45) Motion for Bond isDENIED.

SO ORDERED.

All Citations

Slip Copy, 2020 WL 1323036

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Matter of Extradition of Toledo Manrique, Slip Copy (2020)

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2020 WL 1307109Only the Westlaw citation is currently available.

United States District Court, N.D. California.

In the MATTER OF the EXTRADITIONOF Alejandro TOLEDO MANRIQUE

Case No. 19-mj-71055-MAG-1 (TSH)|

Signed 03/19/2020

Attorneys and Law Firms

Christopher J. Smith, Rebecca A. Haciski, U.S. Departmentof Justice Office of International Affairs, Washington,D.C., Elise LaPunzina, United States Attorney's Office, SanFrancisco, CA, for USA.

Graham E. Archer, Federal Public Defender, Oakland, CA,Joseph Pascal Russoniello, Browne George Ross LLP, SanFrancisco, CA, Mara Kapelovitz Goldman, Federal PublicDefender, San Jose, CA, for Alejandro Toledo Manrique.

ORDER RE: SECOND MOTIONFOR RECONSIDERATION

Re: Dkt. No. 109

THOMAS S. HIXSON, United States Magistrate Judge

*1 These are extraordinary times. The novel coronavirusthat began in Wuhan, China, is now a pandemic. The ninecounties in the San Francisco Bay Area have imposed shelter-in-place orders in an effort to slow the spread of the contagion.This Court has temporarily halted jury trials, even in criminalcases, and barred the public from courthouses.

Against this background, Alejandro Toledo has moved forrelease, arguing that at 74 years old he is at risk of seriousillness or death if he remains in custody. The Court ispersuaded. The risk that this vulnerable person will contractCOVID-19 while in jail is a special circumstance thatwarrants bail. Release under the current circumstances alsoserves the United States’ treaty obligation to Peru, which –if there is probable cause to believe Toledo committed thealleged crimes – is to deliver him to Peru alive.

The Court appreciates San Mateo County’s management planfor the jail. It looks pretty detailed, although it seems torely on self-reporting and observation to identify potentiallyinfected people, and it doesn't say anything about testing.At oral argument, counsel for the government was unable tomake any representations concerning Maguire’s possessionof testing kits. The Court is glad to hear that there arecurrently no reported cases of COVID-19 at Maguire, but isunsure what that means if people are not being tested. And,as the management plan itself acknowledges, symptoms ofCOVID-19 can begin to appear 2-14 days after exposure,so screening people based on observable symptoms is justa game of catch up. That’s why the Bay Area is onlockdown. We don't know who’s infected. Accordingly, thegovernment’s suggestion that Toledo should wait until thereis a confirmed outbreak of COVID-19 in Maguire beforeseeking release, see ECF No. 113 at 6 (“If the situationwith respect to COVID-19 at Maguire changes, Toledo isfree to seek reconsideration of the issue at that point.”), isimpractical. By then it may be too late.

There is still the problem that Toledo is a flight risk. Thisproblem has to a certain extent been mitigated by the existingpandemic. The Court’s concern was that Toledo would fleethe country, but international travel is hard now. Travelbans are in place, and even if Toledo got into anothercountry, he would most likely be quarantined in God-knows-what conditions, which can't be all that tempting. Also,international travel would itself pose a risk of infection bylikely putting Toledo in contact with people in close quarters.Maybe the risk of COVID-19 is worth it if he can make a runfor it and get away. The government says he faces the prospectof life in prison if he is convicted in Peru. But escape is riskierand more difficult now.

While the risk that Toledo will flee cannot be completelymitigated, certain release conditions will help. Toledo mustbe on home lockdown and can leave only for medicalappointments, attorney visits or court appearances (onceattorney visits and court appearances resume). He must weara GPS device so his movements can be tracked. There are abunch of other release conditions as well. They are spelledout in the separate release form that will become the actualrelease order once it’s been fully executed.

*2 Let’s talk about bail and sureties. Toledo’s prior proposedbail package consisted of $1 million secured by cash andproperty (mostly property) put up by friends, with nothingfrom his wife. This was back when he was telling the Court

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his wife had no money, and when his wife was saying the

same thing to Pretrial Services. 1 He now offers essentiallythe same bail package. However, the Court has a concernabout that – a concern that can be mitigated, but a concernnonetheless. Bail isn't just about money; it’s about whosemoney it is. We want sureties who have moral suasion overthe defendant. The idea is that if the defendant flees, he willcause people he cares about to lose money or property, soout of concern for them he won't do that. If Toledo’s friendswere putting up their assets at a time when his wife wassitting on $1 million in cash and near-cash equivalents, andshe was offering nothing, this presents the concern that theywere tricked, which causes the Court to wonder how muchconcern Toledo has for his friends and how much suasionthey exercise over him. For any of his friends who are postingassets, the Court needs to confirm in a telephonic hearing thatthey know his wife had $1 million to her name last August andstill today (according to her counsel) has between $700,000and $800,000, and with that knowledge the friends are stillwilling to act as sureties. If they know the truth and are stillwilling to stand by him, the Court will accept that they wieldsuasion. (Also, independently of suasion, the Court does notwant sureties to be misled.). Two of those sureties, MartinCarnoy and Larry Diamond, participated in the telephonicbail hearing and confirmed their knowledge and continuedwillingness to be sureties.

Also, Elaine Karp-Toledo must post some cash bail andsurrender her passports. As noted, her counsel represents thatshe currently has between $700,000 and $800,000 and thatshe has ongoing legal expenses due to a criminal investigationinto her and due to Peru’s attempt to get her extraditedas well. And, of course, she needs money for her andToledo to live off of during the course of this proceeding.Toledo’s counsel represents that Toledo’s friends can putup a combined $325,000 in cash bail, plus security in twoproperties in Washington state. The Court will therefore setthe bail amount at $1 million, to be secured by $500,000 incash and the Washington properties. This allocates to Toledo’swife $175,000 in cash bail.

The Court acknowledges some uncertainty about whether thisis enough money from Toledo’s wife. The Court suspectsKarp-Toledo has access to more money through familymembers. However, the Court prefers to base its bail decisionon evidence, not just suspicions. The evidence the Court isstarting with is the $1 million the government showed thatKarp-Toledo possessed as of last August. That this would

have winnowed down to less than $800,000 today is notthat surprising if she has ongoing legal expenses. She needsenough money to deal with her own legal problems andsupport her and her husband for what may be quite sometime. With the surrender of her passports, and for all the samereasons that Toledo may not want or be able to flee right now,this amount of cash bail and all of the other release conditionsseem sufficient to prevent the couple from fleeing, even if thatcannot be completely guaranteed. If the government has orcomes up with evidence that Karp-Toledo has more moneythan her counsel represented, the Court invites a motion forreconsideration of the bail amount.

So, when does Toledo get out? When the $500,000 in cashbail is posted and his wife surrenders her passports. Thatwill require three more sureties to be admonished, and all sixof the cash sureties to post the money. The Court will not,however, wait for the Washington properties to be posted assecurity. Under the best of circumstances, it takes a coupleof weeks to post real estate, and the pandemic in Washingtonis even worse than here. It could be a while before thatsecurity gets posted, and there is urgency in getting Toledoreleased. So, the plan is that Toledo’s lawyer should line upthe remaining sureties, let the Courtroom Deputy know whenthey can be available, and the Court will admonish themby phone. Toledo’s lawyer is in charge of getting everyoneto sign the bond form. After the cash sureties have beenadmonished and signed, the $500,000 in cash has been posted,and Karp-Toledo surrenders her passports, the Court willissue the release order. At that point, Toledo must report toPretrial Services in San Jose (that’s also where his wife mustsurrender her passports) to be fitted with the GPS device.Toledo’s second motion for reconsideration is accordinglyGRANTED.

*3 The government’s request for “a brief stay” of any releaseorder pending an appeal to Judge Chhabria is DENIED asunnecessary. As just explained, there are a few steps leftbefore release happens. This order (i.e., the one you arereading) is the undersigned’s decision that release on bailand other conditions is appropriate, and the government canappeal it right now.

IT IS SO ORDERED.

All Citations

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Footnotes1 Her lawyer, Ethan A. Balogh, has submitted a declaration in which he attempts to cast this as a misunderstanding. At

the hearing he admitted he wasn't on the phone call between Ms. Karp-Toledo and the Pretrial Services officer, and theCourt explained that this rendered his declaration worthless.

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United States v. Martin, Slip Copy (2020)

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2020 WL 1274857Only the Westlaw citation is currently available.

United States District Court, D.Maryland, Southern Division.

UNITED STATES of Americav.

Adam MARTIN, Defendant

Criminal Case No. PWG-19-140-13|

Filed 03/17/2020

Attorneys and Law Firms

Matthew DellaBetta, Michael A. Goldsticker, US Attorney'sOffice, Baltimore, MD, for United States of America.

Gary Edward Proctor, Jennifer Elizabeth Smith, The LawOffice of Gary E. Proctor, LLC, Baltimore, MD, forDefendant.

MEMORANDUM OPINION AND ORDER

Paul W. Grimm, United States District Judge

*1 This Memorandum Opinion and Order addressesDefendant Adam Martin’s appeal of a detention order issuedby Chief Magistrate Judge Beth Gesner. Martin is chargedwith conspiracy to distribute controlled substances (heroin,cocaine) in violation of 21 U.S.C. § 846. If convicted, hefaces a sentence of not less than ten years incarceration,up to a maximum term of life imprisonment. In a writtenruling entered following a detention hearing held on June25, 2019, Chief Judge Gesner observed that there was apresumption under 18 U.S.C. § 3142(e)(3)(A) (the “BailReform Act”) that Martin should be detained, which hehad not rebutted. ECF No. 71. She further found by clearand convincing evidence that due to: the nature of the caseagainst Martin, his role in the offense, the weight of theevidence against him (including substantial intercepted wireconversations discussing the use of guns and violence andthe seizure of firearms from Martin), coupled with his priorpoor adjustment to community supervision, violations ofprobation, and commission of the charged misconduct whileon court supervision, that he should be detained. Id. Martinappealed, citing the circumstances regarding the COVID-19pandemic as reason for his release. (“Appeal”), ECF No. 206.

The Government has filed an opposition, ECF No. 207, andMartin a reply, ECF No. 208. For the reasons discussed below,Martin’s appeal is DENIED.

Background

The essence of Martin’s appeal is that the recent state ofemergency declared by the Federal and Maryland Stategovernments relating to the COVID-19 pandemic constitutesinformation not known by him at the time of his detentionhearing that is material to whether there are conditions ofrelease that may be fashioned to assure his appearance attrial and protect the community under 18 U.S.C. § 3142(f)(2)(B). Appeal at 5. Specifically, Martin contends that hesuffers from diabetes, high blood pressure, asthma, and pain,and worries that his continued detention in the ChesapeakeDetention Facility (“CDF”) likely will cause him to fall victimto the COVID-19 virus, and that the medical and correctionalauthorities at CDF will be overwhelmed with inmates whohave contracted the virus, and unable to provide him withadequate care. Appeal at 2–4; see also Communication ofHealth Needs, June 24, 2019, ECF No. 32. He seeks releaseto the third-party custody of his wife with “24/7 electronicmonitoring.” Appeal at 4. He argues that his lifelong residencein Baltimore means that he is not a flight risk, and that, hisextensive criminal history notwithstanding, none of his prioroffenses are for crimes of violence (but acknowledges that hehas two prior firearms convictions). Id. at 3–4. Therefore, heconcludes, he is not a danger to the community. Id. He asksfor and expedited hearing at which he wants the warden anddirector of health services at CDF to testify. Id. at 5.

The Government sees things quite differently. It points outthat Martin has not challenged, let alone rebutted, any ofChief Judge Gesner’s factual findings, nor has he overcomethe presumption of detention. Opposition at 1. It argues thatMartin is a lead defendant in a 17-defendant drug conspiracy,and that a search warrant of two stash houses that Martinmaintained yielded five firearms, over 200 grams of cocainebase, and other narcotics. Id. at 2. And, it detailed theweight of the evidence that Chief Judge Gesner cited as oneof the reasons for his detention, which included: wiretapinterceptions where Martin reveals the extent of his leadershiprole in the drug conspiracy, intention to “beat the fuck out of”a drug associate who he thought had stolen drugs from anotherco-conspirator, as well as intercepted conversations whereMartin and his confederates discussed procuring firearms toaid in the conspiracy. Id. at 4–5.

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*2 The Government also highlighted Martin’s extensivecriminal record (he has managed to accumulate 17 criminalhistory points, easily securing him a criminal history ofVI under the sentencing guidelines, the highest possiblecategory), and his poor adjustment to community and courtsupervision. Id. at 6–7. And, the Government urges the Courtto consider the nature and seriousness of the danger that itperceives that Martin poses to the community in the event ofhis release. Id. at 7–8. The Government also argues that statecorrection officials at CDF have established comprehensivehealth measures to avoid a COVID-19 outbreak, that thereare (for now, at least) no known cases of any detaineesat CDF having contracted the virus, and that, in essence,Martin seeks release on the mere speculation that he willbecome ill. Id. at 8–12. In this regard, the Government laudswhat it views as the “substantial experience” of correctionalofficials in Maryland with dealing with transmission ofviruses within a detention facility, including successfullydealing with serious diseases such as “HIV/AIDS, MRSA,sexually transmitted diseases, viral hepatitis, tuberculosis,and seasonal influenza.” Id. at 9. Finally, citing United Statesv. Williams, 753 F. 2d 329, 331 & n.7 (4th Cir. 1985),the Government argues that this court may resolve Martin’sappeal on the written submissions, accepting the proffers ofcounsel for the facts upon which they rely. Id. at 3, n.2.

In his reply, Martin repeats his earlier arguments, expresseshis belief that it will be just a matter of time before he contractsCOVID-19 if he remains detained, and that the Government’sfaith in the ability of CDF to prevent, let alone contain andtreat an outbreak of the virus, does not warrant taking the riskthat he would face if his detention continues. Reply at 1-3.

Discussion

Before addressing the arguments of the parties and theevidence before me, it is important to recognize theunprecedented magnitude of the COVID-19 pandemic. Whilecorrectional officials at CDF and other facilities in Marylandmay successfully have dealt with past viruses and outbreaksof communicable diseases, they pale in scope with themagnitude and speed of transmission of COVID-19. Thisvirus comes in the form of a world-wide pandemic, resultingin a declaration of a national emergency by the federalgovernment, and state of emergency by the State of Maryland.With no known effective treatment, and vaccines months(or more) away, public health officials have been left to

urge the public to practice “social distancing,” frequent (andthorough) hand washing, and avoidance of close contact withothers (in increasingly more restrictive terms)—all of whichare extremely difficult to implement in a detention facility.For this reason, the Court takes this health risk extremelyseriously, and recognizes that it can indeed constitute newinformation having a material bearing on whether thereare conditions of release that will reasonably assure theappearance of detained defendants and secure the safety ofthe community. 18 U.S.C. § 3142(f)(2)(B). Indeed, the DueProcess Clauses of the Fifth or Fourteenth Amendments, forfederal and state pretrial detainees, respectively, may wellbe implicated if defendants awaiting trial can demonstratethat they are being subjected to conditions of confinementthat would subject them to exposure to serious (potentiallyfatal, if the detainee is elderly and with underlying medicalcomplications) illness. See Bell v. Wolfish, 441 U.S. 520,535 (1979) (“In evaluating the constitutionality of conditionsor restrictions of pretrial detention that implicate only theprotection against deprivation of liberty without due processof law, we think that the proper inquiry is whether thoseconditions amount to punishment of the detainee. For underthe Due Process Clause, a detainee may not be punished priorto an adjudication of guilt in accordance with due processof law.”); City of Revere v. Massachusetts Gen. Hosp., 463U.S. 239, 244 (1983) (“The Due Process Clause, however,does require the responsible government or governmentalagency to provide medical care to [pretrial detainees] whohave been injured....”); Loe v. Armistead, 582 F.2d 1291,1293–94 (4th Cir. 1978) (“[Defendant] was not a prisonerdetained under a judgment of conviction; rather, he was apretrial detainee. Under such circumstances, the protectionsthat apply to him are found in the due process clause ofthe fifth amendment, since he was a federal prisoner, ratherthan in the eighth amendment’s prohibition against crueland unusual punishment.”); Brown v. Harris, 240 F.3d 383,388 (4th Cir. 2001) (For state pretrial detainee, “the DueProcess Clause of the Fourteenth Amendment, rather than theEighth Amendment, mandates the provision of medical careto detainees who require it.”) (emphasis in original).

*3 But as concerning as the COVID-19 pandemic is,resolving an appeal of an order of detention must in thefirst instance be an individualized assessment of the factorsidentified by the Bail Reform Act, 18 U.S.C. § 3142(g): thenature and circumstances of the offense charged, includingwhether it involves controlled substances or firearms; theweight of the evidence against the defendant; the defendant’shistory and characteristics (including history relating to drug

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abuse, defendant’s criminal history, and record of appearingat court proceedings); whether the detainee was on probation,parole, or other court supervision at the time of the allegedoffense conduct; and the nature and seriousness of the dangerto any person or the community posed by the defendant’srelease. When addressing an appeal of a detention order,the Court must reach a determination promptly. 18 U.S.C. §3145(c).

While the Bail Reform Act is silent about whether thedefendant is entitled to an in-court hearing on an appeal ofa detention order, there is ample authority for the conclusionthat the Court may decide the motion on the filings (includingproffers offered by counsel) as opposed to a hearing. 18U.S.C. § 3145(b) establishes that “[i]f a person is ordereddetained by a magistrate judge” that person “may file, with thecourt having original jurisdiction over the offense, a motionfor revocation or amendment of the order.” Upon such amotion, the court must make a de novo “determination asto whether the magistrate judge’s findings are correct basedon the court’s review of the evidence before the magistratejudge.” United States v. Sidbury, No. LWF-15-184, 2015WL 8481874, at *1 (E.D.N.C. Dec. 8, 2015) (citing UnitedStates v. Williams, 753 F.2d 329, 333–34 (4th Cir. 1985)).The court “may conduct an evidentiary hearing” as part ofits review. United States v. King, 849 F.2d 485, 490 (11thCir. 1988). However, “there is no statutory requirement thatthe court hold a hearing” and the court “retains the discretionto decide whether to hold a hearing.” United States v. Oaks,793 F. App'x 744, 747 (10th Cir. 2019). See also, Williams,753 F.2d at 331 (recognizing that the court may permit theparties to “introduce proffers of evidence” as an alternativeway to allow the introduction of new evidence); United Statesv. Hensler, 18 F.3d 936 (5th Cir. 1994) (holding defendantwas not entitled to evidentiary hearing); King, 849 F.2d at490 (“based solely on a careful review of the pleadingsand the evidence developed at the magistrate’s detentionhearing, the district court may determine that the magistrate’sfactual findings are supported and that the magistrate’s legalconclusions are correct.”).

A de novo review of the written submissions and docketfilings is especially appropriate in this case, when theCourt must endeavor to comply with the federal and Staterecommendations about avoiding bringing people together ingroups larger than ten persons, as well as rule expeditiously.

On the record before me, I conclude that Chief MagistrateJudge Gesner’s initial assessment of Martin was correct.

Given the nature of the charges against him, there is apresumption that he should be detained. As set forth inthe Government’s proffer (and confirmed by Chief JudgeGesner’s detention order), Martin is charged with beinga lead-defendant in a multi-defendant drug conspiracyoperating in Baltimore City. If convicted, he must besentenced to a mandatory minimum term of ten yearsincarceration, up to a maximum term of life imprisonment.Search warrants executed on safe houses controlled by himproduced substantial amounts of controlled substances andmultiple firearms. Wiretap intercepts confirmed the degree ofhis involvement in the conspiracy, as well as his inclination toresort to violence to deal with persons thought to have stolendrugs from a co-conspirator. He was intercepted discussingthe use of guns and violence to further the conspiracy.

*4 Further, his criminal history is extensive, and includestwo prior firearms offenses, as well as controlled substanceoffenses. When placed on community or court supervision,he has violated his release conditions, and was on courtsupervision at the time of the conduct currently charged inthis case. The best predictor of how Martin will behave if hewere to be released is how he has behaved when released inthe past, and his track record is a poor one.

Nor has Martin established that, if released, he would notcontinue to be a danger to the community. While the locationmonitoring that he proposes may offer useful informationabout where he is, it provides little useful information aboutwhat he is doing, and the ready accessibility of smart phonesand digital communication devices would make it all tooeasy for him to resume his involvement (directly or throughconfederates) in the distribution of controlled substanceswithout detection. Moreover, location monitoring is not alimitless resource, nor is its installation and monitoringby United States Pretrial Services officers without risk tothose personnel (who must be trained and certified to installlocation monitoring) given the current recommendationsregarding implementation of social distancing.

Finally, while the record confirms that Martin has disclosedthat he suffers from asthma, high blood pressure, anddiabetes, this alone is insufficient to rebut the proffer bythe Government that the correctional and medical staffat CDC are implementing precautionary and monitoringpractices sufficient to protect detainees from exposure to theCOVID-19 virus.

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For all the above reasons, I reach the same conclusionas Chief Magistrate Judge Gesner. Martin has failed torebut the presumption of detention, and the Government hasestablished by clear and convincing evidence that he mustcontinue to be detained for the protection of the community.Therefore, his appeal is DENIED.

ORDER

Accordingly, it is, this 17th day of March, 2020, herebyORDERED that Defendant’s Appeal of Detention Order andRequest for Hearing and, Following That, Release, ECF No.206, IS DENIED.

All Citations

Slip Copy, 2020 WL 1274857

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA

v. JOSE PEREZ,

Defendant.

AMENDED ORDER

19 Cr. 297 (PAE)

Upon the application of defendant Jose Perez, pursuant to 18 U.S.C. § 3142(i) for

temporary release from custody during the current COVID-19 pandemic (Dkt. 58), and the

Government’s opposition thereto (Dkt. 59), IT IS HEREBY ORDERED:

1. The Court’s decision in this case is based on the unique confluence of serious health

issues and other risk factors facing this defendant, including but not limited to the defendant’s

serious progressive lung disease and other significant health issues, which place him at a

substantially heightened risk of dangerous complications should be contract COVID-19 as

compared to most other individuals. Accordingly, this Order should not be construed as a

determination by this Court that pretrial detention is unsafe or otherwise inappropriate as a

general matter or in any other specific case.

2. Pursuant to 18 U.S.C. § 3142(i), the Court concludes that compelling reasons exist for

temporary release of the defendant from custody during the current public health crisis.

Accordingly, the defendant’s application is GRANTED pursuant to the following conditions:

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3. The Clerk of Court is directed to prepare a new personal recognizance bond with the

following conditions of release:

a. A personal recognizance bond in the amount of $75,000, to be signed by the

defendant and co-signed by the defendant’s wife and adult son as sureties;

b. All mandatory conditions of release included in this Court’s standard “Order

Setting Conditions of Release” form;

c. Third-party custodianship by the defendant’s wife, Ms. Annette Piri-Perez,

who shall be responsible to this Court for ensuring the defendant’s compliance

with these conditions of release;

d. Home incarceration at the defendant’s wife’s residence in the Bronx, New

York, with monitoring by means chosen at the discretion of Pretrial Services.

The defendant shall be on 24-hour lockdown in the residence except for

emergency medical visits. Any another leave from the residence must be

approved by either the Pretrial Services officer or by the Court on application

from defense counsel.

e. No visitors to the residence except for family members;

f. Pretrial Services supervision as directed by the Pretrial Services Office;

g. Surrender all passports and other travel documents and make no applications

for new or replacement documents;

h. Drug testing as directed by the Pretrial Services Office;

i. The defendant shall not possess a firearm, destructive device, or other

weapon;

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j. The defendant shall not use or possess any narcotic drug or controlled

substance unless prescribed by a licensed medical practitioner;

k. The defendant shall have no intentional or prolonged contact directly or

indirectly with any child under the age of 18 (including, without limitation, his

grandchildren) without prior permission of the Pretrial Services Office and

then only in the presence of another adult chaperone family member as

approved by the Pretrial Services Office;

l. The defendant shall not view, purchase, or distribute any materials depicting

minors in the nude or engaged in sexually explicit conduct or positions;

m. The defendant shall have no access to the internet or any internet-enabled

electronic device. He shall use only a “flip” phone. The Pretrial Services

Office shall work with the defendant’s wife to password protect all internet-

enabled devices in the home, and the defendant’s wife shall not provide the

password to the defendant.

n. The defendant shall be released upon the signature of the defendant and the

two sureties on the bond, including Ms. Piri-Perez’s agreement to act as third-

party custodian under the above conditions; and, if Mr. Perez has not yet been

released pursuant to the Court’s initial order, upon the Pretrial Services

Office’s installation of the monitoring technology that it selects. The Pretrial

Services Office shall conduct a home visit as soon thereafter as is practicable

to establish all remaining safeguards, with any remaining conditions to be

satisfied within one week of the date of this Order.

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4. The Pretrial Services Office is directed to immediately alert the Court, the

Government, and defense counsel of any violation of the above conditions, without need for a

formal violation petition. The defendant is hereby notified that violation of the conditions of

release will likely result in revocation of this temporary release.

5. Defense counsel is directed to submit a status update letter to the Court once a week

after consultation with the Government, informing the Court as to the defendant’s status, health,

and compliance with the conditions of release.

6. This Order is subject to modification or revocation by the Court at any time. The

Court intends to terminate the defendant’s temporary release and return the defendant to pretrial

detention as soon as the Court concludes that the defendant no longer faces the acute health risk

posed by the current circumstances.

SO ORDERED. Dated: New York, New York March 19, 2020

THE HONORABLE PAUL A. ENGELMAYER UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF NEW YORK

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Mike
Signature
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UNITED STATES OF AMERICA, v. HERMAN STEWARD, Defendant., Slip Copy (2020)

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

2020 WL 1468005Only the Westlaw citation is currently available.

United States District Court, S.D. New York.

UNITED STATES OF AMERICA,v.

HERMAN STEWARD, Defendant.

S1: 20cr0052 (DLC)|

Filed 03/26/2020

MEMORANDUM OPINION AND ORDER

DENISE COTE United States District Judge

On March 19, 2020, the defendant sought temporary releasefrom the Metropolitan Correctional Center (“MCC”) pursuantto 18 U.S.C. § 3142(i) on account of the COVID-19pandemic. The Government opposes the defendant’s release.The defendant’s application is denied.

The defendant has been indicted for violation of 21 U.S.C.§ 846. In particular, he has been indicted for conspiringto distribute and possess with intent to distribute 28 gramsand more of mixtures and substances containing a detectableamount of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B). He is facing a mandatory minimum term of imprisonmentof five years and the Government calculates his sentencingguidelines range as 262 to 327 months. Trial is scheduled forNovember 2, 2020.

The defendant consented to remand following his release,without prejudice to a future application for bail. TheGovernment has shown by clear and convincing evidencethat his release into the community would present a dangerto others, and the defendant does not argue otherwise.

Among other things, the defendant has a lengthy criminalrecord, including for violation of conditions of release andsupervision on release. In this case, there is recorded evidenceof his participation in a drug conspiracy in which he sold crackcocaine to others. The Government represents that it will beable to prove at trial that some of those sales were from thedefendant’s own apartment.

The defendant makes this application pursuant to Section3142(i). That section provides that a

judicial officer may, by subsequentorder, permit the temporary releaseof the person, in the custody ofa United States marshal or anotherappropriate person, to the extent thatthe judicial officer determines suchrelease to be necessary for preparationof the person’s defense or for anothercompelling reason.

18 U.S.C. § 3142(i).

The defendant has not identified any appropriate person intowhose custody the defendant may be released or shown acompelling reason for this release. Indeed, based on the recordcurrently before the Court, it appears that the defendant’srelease into the community would endanger the safety ofthe community. There is also no reason to find that thedefendant’s release would lessen the risk to his healthpresented by COVID-19.

All Citations

Slip Copy, 2020 WL 1468005

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United States District Court, D. Maryland.

UNITED STATES OF AMERICAv.

JULIUS VALENTINE WILLIAMS, Defendant

CRIMINAL NO. PWG-13-544|

03/24/2020

Charles B. Day, United States Magistrate Judge

MEMORANDUM OPINION

*1 The Court has received Defendant’s Emergency Motionfor Reconsideration of Bond (the “Emergency Motion”), ECFNo. 92. The Court has reviewed the Emergency Motion andthe Opposition thereto, ECF No. 93. No hearing is deemednecessary. Local Rules 105.6 and 207 (D. Md.) The Courthereby DENIES the Emergency Motion.

I. Relevant Procedural HistoryAs set forth in the submissions of the parties, the releasehistory of Defendant is well documented. On October 7,2013, Mr. Williams appeared before the Court on charges offiling false tax returns. He was released on conditions. ECFNo. 8. Seven months later, the Court felt compelled to orderDefendant’s detention in light of evidence that Mr. Williamswas continuing to engage in the same unlawful misconduct.After subsequently being found guilty of tax fraud andidentity theft, and serving years of incarceration, Mr. Williamswas again offered the opportunity to be free in the communityunder explicit terms of supervised release. Nonetheless,within seven months of his release, his supervising officialswere seeking his detention. This time, it was alleged thatMr. Williams was not reporting as required, not payingrestitution as ordered, refusing to provide required documentsas directed, and was again preparing and submitting false taxdocuments. At the initial appearance held on May 2, 2019, theCourt released Mr. Williams on conditions.

By November 2019, another petition was filed, alleging thatMr. Williams had been arrested and charged by the Stateof Georgia with filing fraudulent tax statements. The partiesand the Court agreed to delay addressing these concerns, yet

before a hearing could held, another petition was filed notingthat Mr. Williams had been out of contact for months withboth his federal and State of Georgia supervising officers.On February 7, 2020, this Court issued a warrant for Mr.Williams’ arrest.

A hearing was held on February 11, 2020, wherein the Courtwas persuaded that Mr. Williams’ history of misconduct onrelease was repeating itself. Mr. Williams’ post-convictionconduct was mirroring his pre-conviction conduct yearsearlier. The Government proffered evidence to believe thatMr. Williams was resuming his involvement in criminalactivity and was refusing to allow meaningful supervisionwhile in the community. Moreover, as a person undersupervision, Mr. Williams was not able to demonstrate by“clear and convincing evidence” that he would appear forcourt as told, follow the lawful instructions of the Courtor of his supervising officer, or to otherwise obey the law.Order of Detention, February 11, 2020, ECF No. 85; Fed. R.Crim. P. 32.1(a)(6). It is within this context, that Defendant’sEmergency Motion is written.

II. The COVID-19 PandemicIt is understandable for any person presently incarceratedduring the pendency of the global COVID-19 pandemic towant an immediate release. Ordinarily, the Court does not“recalculate” a decision to release or to detain a defendantin the absence of new information that was not available atthe time of the original determination. Under the Bail ReformAct the Court is required to consider a host of factors whichmight inform the question of detention, including changedcircumstances.

*2 The hearing may be reopened,before or after a determination by thejudicial officer, at any time beforetrial if the judicial officer finds thatinformation exists that was not knownto the movant at the time of the hearingand that has a material bearing on theissue whether there are conditions ofrelease that will reasonably assure theappearance of such person as requiredand the safety of any other person andthe community.

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18 U.S.C. Section 3142(f). While the deadly virus may havebeen in development, the national and international impact ofCOVID-19 was not on the radar of the parties or the Courtat the time of the detention hearing held on February 11. Theimpact of this virus has been universal, affecting nearly allaspects of life in the District of Maryland. Its existence isunquestionably “material.”

The present knowledge of COVID-19 is amply documentedby the voluminous references set forth in the EmergencyMotion. Virtually every sector of public life has been affected,with both private and governmental operations being scaledback to a minimum or shuttered altogether. Experts tell us thatthe rate of infections has yet to peak in the United States, soconditions are expected to worsen. The Court accepts that asa 67-year-old person, Mr. Williams is a member of a groupconsidered more vulnerable to contracting this deadly virusthan others.

The Court is mindful that it bears a fiduciary responsibilityto that those that are detained in jails and prisons. Theincarcerated look to the Courts for protection of their health,welfare and personal rights in general. However, the Courtsare not on the front line. That space is rightly occupiedby corrections officials and their administration. On thisrecord, there is no suggestion of mistreatment, dereliction ofduty, mismanagement, or other concern. To the contrary, theGovernment’s Opposition speaks with specificity about theabsence of an effect of the virus on Mr. Williams, whereas theEmergency Motion merely raises general concerns that aretrue for every older person who is incarcerated.

Defendant rightfully reminds the Court that those in detentionfacilities “have poorer health than the general population,and even at the best of times, medical care is limitedin these facilities. Many people who are incarcerated alsohave chronic conditions, like diabetes or HIV, which makesthem vulnerable to severe forms of COVID 19.” EmergencyMotion 4-5. The defense goes on to note that these people are“at special risk given their living situation.” Id. at 5. These arechallenges that cannot be denied, but as they relate to the issueof release, they are concerns not concrete enough to justifythe release of Mr. Williams.

It is the Government that provides the specific details here.While the situation may change, as of March 20, 2020“there are no cases of COVID-19” at Mr. Williams’ detentionfacility. Gov’t Opp’n 6. The Government correctly notesthat the defense makes no suggestion that Mr. Williams

has the virus, or that he has been exposed to the virus.Id. Mr. Williams is merely casting possibilities in lightof his understandable apprehension. Aside from being anolder person, Mr. Williams has expressed no other physicalvulnerabilities. As the Government writes, detained personswith more compromised physical health have made similararguments to no avail. See United States v. Martin, PWG19-140, March 17, 2020 (D. Md.)(J. Grimm), ECF No. 209;United States v. Bilbrough, TDC 20-33, March 20, 2020 (D.Md.)(J. Sullivan), ECF No. 76. The Court has also consideredthe reasoning in United States v. Jones, CCB 17-582, March20, 2020, (D. Md.)(J. Coulson), ECF No. 136, whereinthe defendant was pregnant, on prescribed medications, andseeking release due to COVID-19. The Court has reflected onall of the considerations and factors in play at the detentionhearing held on February 11. Even with the pandemic that hasbefallen us, it does not change the calculus of detention here.

*3 The Government has articulated in great detail themeasures implemented by the facility where Defendant ishoused. Gov’t Opp’n 7-8. These measures are extensiveand, up to the present moment, adequate as it appearsthe facility has a lower incidence of infection than thegeneral population. Should the unfortunate event occur, thecorrectional authorities have in place a plan of action thatshould not be summarily embraced or discarded. Nor doesit follow that a presumption of release materializes withoutmore details about the impact upon Mr. Williams directly.Information regarding prisoner movements, his proximityto those infected, and other measures taken in response(or not) will be important factors to consider. As has beenmentioned by this Court on several occasions, the BailReform Act requires an “individualized determination” aboutthe appropriateness of release for each defendant.

In summary, Defendant has still failed to demonstrate byclear and convincing evidence that release is appropriate.The existence of the present pandemic, without more, is nottantamount to a “get out of jail free” card. Not even for theolder person being detained. While there has been a changein conditions as a result of the pandemic, there has not beenenough change to justify the release of Mr. Williams.

III. ConclusionThe Court is not persuaded that Defendant has demonstratedby clear and convincing evidence that he should be releasedfrom detention. The combination of his age and the existenceof COVID-19, standing alone, are not sufficient for the

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reasons stated above. Accordingly, Defendant’s EmergencyMotion is DENIED.

So Ordered this 23 rd day of March, 2020.

/s/

Charles B. Day

United States Magistrate Judge

All Citations

Slip Copy, 2020 WL 1434130

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