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finding that because COVID-19 is prevalent in the community at large, any difference in health risks to detained population was minimal
Summary of this case from United States v. LunnieOpinion
No. 3:20-CR-00003-GFVT-MAS
2020-03-30
UNITED STATES of America, Plaintiff, v. Ricky Joe CORNISH, Jr., Defendant.
David A. Marye, Assistant U.S. Attorney, U.S. Attorney's Office, Lexington, KY, for Plaintiff.
David A. Marye, Assistant U.S. Attorney, U.S. Attorney's Office, Lexington, KY, for Plaintiff.
DETENTION ORDER
Matthew A. Stinnett, United States Magistrate Judge
The current matter concerns an indictment charging Ricky Joe Cornish, Jr. ("Cornish") with using the Internet to attempt to persuade, induce, entice, and coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422. [DE 1]. The Court conducted a detention hearing in this matter on March 20, 2020. [DE 8]. The Court previously found that the United States had a right to the hearing under 18 U.S.C. § 3142(f)(1)(A). [DE 7]. At the hearing, the United States sought Cornish's detention based on risk of nonappearance and danger. The Court afforded Cornish and the United States all procedural rights provided by the Bail Reform Act ("BRA"). Per Federal Rule of Appellate Procedure 9(a), for the reasons described in this Order, the BRA requires Cornish's detention.
For the charge, the BRA, 18 U.S.C. § 3141, et seq. , imposes a presumption of detention as to both nonappearance and danger. 18 U.S.C. § 3142(e)(3)(E). The Court assesses the presumption under the BRA and United States v. Stone , 608 F.3d 939, 945-46 (6th Cir. 2010). See also United States v. Dominguez , 783 F.2d 702, 707 (7th Cir. 1986) (imposing burden of production on defendant to produce "some evidence that he will not flee or endanger the community if released" in face of presumption); United States v. Hernandez , No. 1:02-CR-006, 2002 WL 1377911, at *2 (E.D. Tenn. Feb. 27, 2002) (crafting production burden as "the burden of producing probative, credible evidence to rebut the presumption and support his [defendant's] contention that he will appear ... and he does not pose a danger"). This is only a production burden, and it is "not heavy." See Stone , 608 F.3d at 945 (noting duty to "introduce at least some evidence"). An unrebutted presumption requires detention. A rebutted presumption remains a pro-detention statutory factor. See id. Where the presumption is met, the burden then shifts back to the United States. Detention, based on danger, must rest on facts supported by clear and convincing evidence. 18 U.S.C. § 3142(f). A flight-based (or, more accurately, nonappearance-based) detention decision must rest on facts supported by a preponderance of the evidence. United States v. Patriarca , 948 F.2d 789, 793 (1st Cir. 1991) ; United States v. Curry , No. 6:06-82-DCR, 2006 WL 2037406, at *6 (E.D. Ky. Jul. 18, 2006). The analyses are distinct, and conditions that could adequately address flight will not necessarily mitigate danger to a sufficient degree. See United States v. Mercedes , 254 F.3d 433, 436-37 (2d Cir. 2001). Further, almost any conditional release ultimately depends on a court's assessment of a defendant's good faith intentions and predicted compliance with conditions imposed. See United States v. Tortora , 922 F.2d 880, 887 (1st Cir. 1990) (evaluating predicted good faith compliance as critical release component). In the end, any detention decision ultimately turns on the efficacy of potential conditions, which in turn hinges substantially on predicted compliance by a defendant. United States v. Hir , 517 F.3d 1081, 1092 (9th Cir. 2008) (noting "critical flaw" in set of proposed, strict release conditions: "In order to be effective, they depend on [the defendant's] good faith compliance."); Id. at 1093 n.13 (stating that any set of conditions except a " ‘replica detention facilit[y]’ " necessarily would "hinge on [the defendant's] good faith compliance").
I. ANALYSIS
The parties took advantage of the inapplicability of the Rules of Evidence to a detention hearing. As the Court indicated at the hearing, it accepts for consideration all information because of the hearing's informality; the quality and nature of proof impacts probativeness, however. Just because information is part of a hearing does not make all hearing information equally persuasive to the Court.
Section 3142(g) factors drive the overall analysis. The Court finds, based on a full analysis of the record and the mandatory factors under the BRA, that the detention of Cornish is warranted.
(g) Factors to be considered. --The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. In considering the conditions of release described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required. 18 U.S.C.A. § 3142(g) (West).
A. RISK OF FLIGHT
Through counsel's proffer and the relevant Pretrial Service Report, it was established that all of Cornish's ties are to the Commonwealth. He grew up, attended high school and community college, and currently lives in Kentucky. [Pretrial Service Report, at 1-2]. His family, including his mother, father, fiancé, and infant child reside Frankfort, Kentucky. [Id. ] Cornish does not possess a valid passport and has never traveled outside the United States. [Id. at 2]. He is not employed because he is disabled and receives disability income. [Id. at 2]. Cornish, his fiancé, and their child currently reside with two friends and a minor child unrelated to Cornish or his fiancee. [Id. at 2]. Cornish's close ties to central Kentucky lean toward a finding of release. 18 U.S.C. § 3142(g)(3) (citing familial ties, length of residence in a community, and past conduct as factors to consider in BRA analysis).
The United States conceded Cornish is not likely to flee, and it sought detention based primarily on risk of danger. Thus, the United States failed to establish by the preponderance of evidence that Cornish was a flight risk, and the Court could create conditions that would prevent Cornish's risk of nonappearance.
B. RISK OF DANGER
Cornish suggested several bond conditions to mitigate the risk of danger to the community or another person. Cornish proffered that his access to the Internet could be restricted and his use of Internet-capable devices be prohibited. He suggested that the Court could prohibit him from having contact with anyone under the age of eighteen. The homeowner with whom he proposes to live would supervise Cornish and ensure that Cornish would not have any inappropriate contact with the 15-year-old who resides in that home (admittedly, he would have some contact with the minor). Finally, Cornish asked that the Court consider home detention with GPS monitoring in lieu of detention. The Court finds that Cornish narrowly rebutted his presumption as to dangerousness.
Upon examination of the relevant factors under the BRA, however, the Court concludes the United States proved by clear and convincing evidence that Cornish is an irremediable danger to others and the community. Cornish's alleged crimes involve a minor and are, therefore, crimes of violence. 18 U.S.C. § 3156 (defining "crime of violence" as used in the BRA to include "any felony under chapter ... 117[.]"). United States v. Champion , 248 F.3d 502, 506 (6th Cir. 2001) (recognizing that violations of federal statutes designed to protect minors constitute a crime of violence); United States v. Campbell , 256 F.3d 381, 397-8 (6th Cir. 2001) ; see also United States v. Martinez , 250 F.3d 1101, 1105 (7th Cir. 2001) ("[e]ngaging in sexual intercourse with a thirteen-year-old girl was a ‘crime of violence’ "); United States v. Abad , 350 F.3d 793, 798-99 (8th Cir. 2003) (recognizing that a crime involving a minor victim constitutes a crime of violence). These allegations are crimes Congress specifically set apart as so dangerous that they require the presumption of detention. "The presumption in favor of detention does not vanish simply because a defendant comes forward with evidence to rebut it. Were the presumption to vanish, ‘courts would be giving too little deference to Congress' findings regarding this class.’ " United States v. Lattner , 23 Fed. App'x. 363, 364, (6th Cir. 2001) (citing United States v. Martir , 782 F.2d 1141, 1144 (2d. Cir. 1986 ). According to the United States' witness, Matt Hedden, detective with the Kentucky Attorney General's Office, Cornish contacted Detective Hedden's undercover persona online, believing the undercover persona to be a 15-year-old girl. Detective Hedden, acting as this fictional 15-year-old child, arranged with Cornish to meet at a hotel to have sex. Cornish arrived at the hotel at the designated time and had condoms in his possession, indicating he likely intended to go through with the plan to have sex with a child. It is clear the first § 3142(g) factor heavily favors a finding of detention in these circumstances. 18 U.S.C. § 3142(g)(1) ("nature and circumstances of the offense charged, including whether the offense is a crime of violence [...] or involves a minor victim.").
The second factor concerns the "weight of the evidence against the person." 18 U.S.C. § 3142(g)(2). "This factor goes to the weight of evidence of dangerousness, not the weight of the evidence of defendant's guilt." United States v. Stone , 608 F.3d 939, 948 (6th Cir. 2010). The weight of the evidence of Cornish's dangerousness is heavy. According to Detective Hedden's testimony, Cornish allegedly reached out online to a person he believed to be a 15-year-old child, exchanged explicit messages with that persona, and arrived at a hotel ready to have sex with that child, who, thankfully, was actually undercover law enforcement. Detective Hedden further testified that he looked through Cornish's phone at the time to ensure this was the same individual with whom he had exchanged the undercover messages. Not only did Detective Hedden find the messages between his undercover persona and Cornish on Cornish's phone, but he also found messages between Cornish and another individual that appeared to be a minor based on the context of the messages. This indicates Cornish may have been attempting to entice more than one minor to engage in unlawful activity with him, which, if true, significantly increases the weight of the evidence of his dangerousness. Accordingly, the Court finds this factor weighs in favor of detention.
In contrast, the third factor points towards a finding of release. Cornish has nothing in his history to imply a level of danger. He has no criminal history other than a 14-year-old speeding ticket. [Pretrial Service Report, at 3]. The bond report reflects an individual who has obtained a community college degree, stayed out of trouble, and never abused substances, although he struggled with homelessness at times. 18 U.S.C. § 3142(g)(3) ("history and characteristics of the person"). Even without a criminal record courts have found the third factor as favoring detention in similar cases. See United States v. Music , No. 107-CR-21-R, 2007 WL 2067057 (W.D. Ky. July 16, 2007) (revoking an order releasing a defendant pending trial when defendant was guilty of violating a crime against a minor and had no prior criminal history); see also Abad , 350 F.3d at 798 (noting even though the defendant had no prior criminal history, "the nature of the crime charged-sexual activity with a minor-weighs heavily against release."); U.S. v. Mercedes , 254 F.3d 433, 438 (2d Cir. 2001) (reversing the decision of the district court to release the defendant even without a prior criminal record). In this case, however, even considering the disturbing allegations against Cornish, the Court cannot conclude that his history and characteristics mandate detention.
The final factor is "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g)(4). Allegations of enticing a child to engage in sexual activity are particularly dangerous and pose a threat the Court cannot easily mitigate if Cornish is released. The Court would have to rely on Cornish's promises that he will abstain from using the Internet and avoid contact with a teenage girl living in his house. The myriad of Internet-capable devices available, including those that work with data plans rather than wifi access, render policing Cornish's Internet use almost impossible. Even more impossible would be ensuring that Cornish did not have contact with the minor child in the home. The Court is especially concerned about the danger Cornish would pose to this child, considering he was attempting to have sex in a hotel with a child of the same age and gender as the child living in his proposed residence if released. The Court cannot release an alleged sexual predator to a home with an unrelated minor child. Cornish offered no alternative living arrangements to assuage this concern. The nature of the danger Cornish poses to this child or the community if released is that he might accomplish the crime he is accused of attempting, and the Court can hardly conceive of a more seriously dangerous crime than child rape. Accordingly, the Court finds that the nature of seriousness of the danger to a person or the community if Cornish is released weighs in favor of his detention.
To add some context, the Court notes that as of the date of this Order, Kentucky's governor has declared a state of emergency as a result of the coronavirus pandemic ravaging the country. All schools and many businesses are closed, and Kentuckians are urged to spend all their time at home. This means that the Court would be sending Cornish to a home where he and the minor child would be spending an unusual amount of time together in the residence, and the minor child would likely have limited contact with those outside the home (such as teachers) to get help if she needed it. This is too great a risk for this child to bear.
While the Court finds that a defendant with no history of criminal activity or violence is not immediately classified as a danger simply by the charges alleged against him or her, the alarming facts provided by Detective Hedden illustrate that Cornish is a danger that cannot be realistically curbed by court-imposed conditions. Cornish's proposed custodian, the owner of the home in which he resides, has a 15-year-old girl also living in the home with them. This child is the exact profile of the fictional victim Cornish attempted to have sex with at the hotel. The Court cannot mitigate the risk Cornish poses by limiting his Internet access or placing him on home detention with GPS monitoring when this minor child lives in the home.
Thus, based upon an examination of the relevant factors discussed above, the Court finds that the United States has established by clear and convincing evidence that Cornish is a danger to another or to the community and the BRA requires detention.
The Court, however, wishes to address an argument defense counsel raised that does not fit neatly within the factors listed in the BRA. At the time of this opinion, over half of a million people around the world are diagnosed with COVID-19, the wide-spread pandemic also known as the coronavirus. Over 122,000 of those diagnoses, along with more than 2,000 confirmed deaths, are in the United States. Federal and state governments are ordering temporary closures of public places, businesses, and restricting social gatherings in an attempt to mitigate the spread of the infectious disease. Currently, the best preventative measure one can take to avoid the virus is to remain self-quarantined and practice "social distancing" or "physical distancing." The World Health Organization warns that while any person can be infected, "[o]lder people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease ) appear to be more vulnerable to becoming severely ill with the virus." The Court is aware of the pandemic and takes the issue seriously.
Coronavirus Disease 2019 (COVID-19) Situation Report – 68, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200328-sitrep-68-covid-19.pdf?sfvrsn=384bc74c_2 (last visited March 29, 2020).
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited March 29, 2020).
Coronavirus Disease (COVID-19) Advice for the Public: Myth Busters , WHO.int, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/myth-busters (last visited March 23, 2020).
See Eastern District of Kentucky, General Orders 20-02, 20-03, and 20-04.
Cornish argues his detention would jeopardize his health because of this pandemic. First and foremost, the BRA and its factors do not provide for any such consideration. For example, the factor set forth in 3142(g)(4) focuses on "the nature and seriousness of the danger to any person or the community that would be posed by the person's release ," not the danger to the defendant upon his detention. [Emphasis added]. The factor set forth in 3142(g)(3(A) focuses on a defendant's personal characteristics, including his health. There is no indication that Cornish is in particularly poor health or in the class of individuals the Centers for Disease Control or World Health Organization has suggested are at a higher risk.
Looking past the BRA's limited factors, Cornish does not make a strong case that the detention centers are incapable of safely preventing and/or treating infectious disease in their facilities. Detention centers are implementing health organizations recommendations for preventing the spread of the coronavirus. While usually the close confinement of a detention facility may increase general risk of contracting disease, the Court has every reason to believe any facility Cornish may be transported to "is implementing precautionary and monitoring practices sufficient to protect detainees from exposure to the COVID-19 virus." United States v. Martin , 447 F.Supp.3d 399, 403–04 (D. Md. Mar. 17, 2020). See also United States v. Hamilton , 19-CR-54, 2020 WL 1323036 (E.D.N.Y. March 20, 2020) ; United States v. Gileno , No. 3:19-cr-161-VAB-1, 2020 WL 1307108 (D. Conn. March 19, 2020) ("[A]t this time the Court cannot assume that the Bureau of Prisons will be unable to manage the outbreak or adequately treat Mr. Gileno should it emerge at his correctional facility while he is still incarcerated"); Joseph A. Bick, INFECTION CONTROL IN JAILS AND PRISONS , 45 Clinical Infectious Diseases 8, 1047-1055 (2007) (discussing detention facilities methods of infection-control). Thus, there is little reason to believe that Cornish would be more at risk if detained versus being released.
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC.gov (March 25, 2020, 9:08 AM), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html; see e.g. , Susan Straub, Jail Suspends Inmate Visitation, lexingtonky.gov, https://www.lexingtonky.gov/news/03-10-2020/jail-suspends-inmate-visitation/ (last visited March 23, 2020).
Overall, the Court finds that the BRA pre-trial detention factors are not all encompassing; they are utilized to determine a defendant's risk of flight and dangerousness, and situations such as a global pandemic do not easily fit within its parameters. Cornish fails to show any actual or substantial increase in harm outside of what every American citizen is currently experiencing during these trying times. The Court rejects Cornish's speculative argument that the dangerous nature of the COVID-19 pandemic supersedes those risks showcased by a BRA analysis.
II. CONCLUSION
For the stated reasons, the Court finds that the United States failed in proving that Cornish was an irremediable flight risk based on facts supported by a preponderance of the evidence but succeeded in showing Cornish was an irremediable danger risk based on facts supported by clear and convincing evidence, which were the requirement for detention. As such, the Bail Reform Act mandates detention. The Court has assessed the record, contemplated the risks, evaluated conditions, and determined that there exist no conditions that can reasonably assure Cornish will not pose a danger to another or the community. Accordingly, the Court GRANTS the United States' oral motion for detention, and DETAINS Defendant Ricky Joe Cornish.
The parties may appeal this Order under the terms of 18 U.S.C. § 3145(a).