Summary
In United States v. Hartsell, 448 F. Supp.3d 975, (N.D. Ind. 2020), a defendant who had pleaded guilty and was pending sentencing sought emergency temporary release under § 3142(i), and the motion was denied.
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CAUSE NOS. 3:19-CR-14(02) 3:20-CR-9 DRL-MGG
03-25-2020
UNITED STATES of America, Plaintiff, v. Charles HARTSELL, Defendant.
Luke N. Reilander, US Attorney's Office, South Bend, IN, for Plaintiff.
Luke N. Reilander, US Attorney's Office, South Bend, IN, for Plaintiff.
ORDER
Damon R. Leichty, Judge
Charles Hartsell requests emergency release from detention because of the COVID-19 pandemic, his heightened risk given his unique and serious medical condition, and recent injury sustained on January 29, 2020. On March 18, 2020, the magistrate judge denied Mr. Hartsell's motion for emergency release. Mr. Hartsell requested an emergency appeal.
He may appeal here. 18 U.S.C. § 3145(b). The court reviews the magistrate judge's detention order de novo , meaning it must decide anew and independently whether detention or temporary release is warranted. See United States v. Jones , 804 F. Supp. 1081, 1090 (N.D. Ind. 1992). Following today's hearing, with additional evidence and proffer, the court agrees with the magistrate judge's order and denies Mr. Hartsell's request for emergency release from detention.
As confirmed at the hearing's start, Mr. Hartsell proceeds under 18 U.S.C. § 3142(i) alone. That was the sole basis for release before the magistrate judge. This statute allows a court to "permit the temporary release, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason." There's a real question whether this statute was intended to cover today's appeal. First, 18 U.S.C. § 3142 applies to the release or detention of a defendant pending trial, but Mr. Hartsell is pending sentencing on his guilty plea to the charge of conspiring to sell a firearm to a known drug user, see United States v. Hartsell, No. 3:20CR9. 18 U.S.C. § 3143(a) applies to the release or detention of a defendant pending sentencing, and that statute has no corresponding cousin to 18 U.S.C. § 3142(i) that would authorize temporary release for a compelling reason.
Second, the language authorizing temporary release in 18 U.S.C. § 3142(i) is appended to the statutory requirements for a detention order under § 3142(e) —so, through construction, ostensibly evinces a congressional intent to consider and permit that temporary release before a guilty plea, but not after. Admittedly, the language first contemplates release that is "necessary for preparation of the person's defense." Any tendency to read "defense" broadly to include sentencing would be cabined by the statute, which would seem to cover trial but not sentencing post-guilty plea. No request was made under 18 U.S.C. § 3143 to alter Mr. Hartsell's detention status at the time of his guilty plea, and rightly so on this record.
Third, there is intended interplay between § 3142 and § 3143, but not § 3142(i). In specific circumstances, § 3143 refers to § 3142. For instance, the court must consider § 3142 in determining release or detention pending appeal by the government. See 18 U.S.C. § 3143(c)(2). Section 3143 also incorporates § 3142(b, c) under certain circumstances in which release or detention is being considered when the defendant appeals or when the defendant pends sentencing. See 18 U.S.C. §§ 3143(a), (b). At no time does § 3143 reference § 3142(i). That Congress married these two statutes in specific ways and notably not with reference to § 3142(i) underscores a view that § 3142(i) applies to pretrial detainees, but not those who have pleaded guilty and merely await sentencing.
Fourth, the statutory dichotomy between § 3142 and § 3143 has real meaning. Before trial, the government has the burden to show that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e) ; see also United States v. Portes , 786 F.2d 758, 765 (7th Cir. 1985). After all, "detention prior to trial or without trial is [a] carefully limited exception" to liberty. United States v. Salerno , 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). That understandably changes after a guilty plea. A presumption then favors detention. United States v. Davis , 442 F.3d 1003, 1008 (7th Cir. 2006). Then, the defendant (not the government) has the burden—and often the burden is to show (except for certain crimes and violent offenses) "by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released." 18 U.S.C. § 3143(a) ; see also United States v. Abuhamra , 389 F.3d 309, 320 (2d Cir. 2004). That Congress omitted a § 3142(i) counterpart in § 3143, at minimum, mirrors the design of this burden-shifting dichotomy.
Fifth, no party cites any case in which § 3142(i) has been used for temporary release of a defendant who has pleaded guilty. The court's review of certain federal cases reflects this same absence of authority. Naturally the thinking on this issue has been developed in the context of an emergency appeal, without briefing from either side on this precise issue to aid the court. The court isn't inclined to cement its views on this issue without that, even recognizing counsel's able contributions at the hearing when asked. The reality is that the government concedes and the defendant agrees in this instance that 18 U.S.C. § 3142(i) applies, so the court analyzes this appeal accordingly, albeit with sound reservation.
To be sure, the court is not insensitive to Mr. Hartsell's history, unique circumstances, health condition, or the risks posed by COVID-19. The pandemic presents an ever-evolving fluid situation. The court rules today based on facts and a reasonable assessment of risk. There has been no reported case of COVID-19 in Elkhart County Jail or for that matter in any state or federal facility in the Northern District of Indiana. Mr. Hartsell is no more at risk of contracting COVID-19 inside Elkhart County Jail than he would be if released to the community. Today, Indiana reports nineteen cases of the virus in St. Joseph County, five cases in Elkhart County, one case in Noble County, but no others in counties that surround Elkhart County. Cases have grown exponentially in public since the first reported case in the United States in late January 2020, and as testing has increased, but thus far not in the jail. What's more, the jail has implemented several contagion-prevention protocols to address the risk, and public access is restricted. These preventative measures may need to evolve to meet the risks as the pandemic evolves, but today they have held the walls against breach.
For his safety on all accounts, Mr. Hartsell has been segregated from the general population; specifically, he has been placed in a protective pod where only two other inmates are housed (six persons maximum). His only physical contact is with guards and, on occasion, one other segregated individual who has accompanied him under guard to receive medical treatment. No new arrestees are placed directly in this pod. He otherwise resides in a private cell without physical contact with others. Mr. Hartsell has access to and uses soap and water in his own cell, which the Centers for Disease Control and Prevention cites as the first best step for protection. The opinion that the virus "will" invade the prison at this point, based on the medical affidavit submitted to support this appeal, or that a risk to his safety exists to justify temporary release in light of all precautions, is speculative. In short, the court finds today neither a "necessary" nor "compelling reason" for temporary release under 18 U.S.C. § 3142(i).
Mr. Hartsell proposed being released to his mother or ex-wife, though § 3142(i) states that a defendant should only be temporarily released "in the custody of a United States marshal or another appropriate person." The pretrial bond report indicated that Mr. Hartsell's mother was unwilling to house him if released on conditions. Seemingly, her position has changed on this front, but neither Mr. Hartsell's mother nor ex-wife will be able to provide the supervision the statute contemplates and serve as the "appropriate person." Even with home detention or other conditions, the court is likewise cognizant of the additional burden and potential exposure to COVID-19 that any one case presents to monitoring probation officers.
Mr. Hartsell's pretrial bond report lists an extensive criminal history, including violations of supervised release and parole, and later an escape from federal custody, notwithstanding his explanation for that. His past is riddled with unfortunate substance abuse. His guilty plea to conspiring to sell a firearm to a known drug user is not an offense to be taken lightly. This criminal behavior and history present a threat to the community and some risk to flee, so the court remains unconvinced that Mr. Hartsell merits release even under 18 U.S.C. § 3143.
That said, based on the likely completion of the draft presentence report today, the potential range that the sentencing guidelines might recommend, and the defendant's intention to argue that he should be sentenced to time served, the court has agreed, after consultation with counsel and considering the unique demands that would be placed on the government, defendant, probation office, United States Marshal's Service, and court staff, to expedite Mr. Hartsell's sentencing.
Accordingly, the court AFFIRMS the magistrate judge's order (ECF 111), save correction of a scrivener's error to reference the Elkhart County Jail, and DENIES Mr. Hartsell's request for temporary release (ECF 116). The court also GRANTS the pending motions to seal documents (ECF 114, 117, 119). A separate entry will be made to address other matters, including sentencing.
SO ORDERED.