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observing that defendant's "general concerns about the risk posed" by coronavirus "apply to every prisoner"
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CRIMINAL ACTION NO. 4:17-CR-00175-ALM-CAN
04-14-2020
UNITED STATES of America v. Silester Raymond ROWE-HODGES (3)
Ernest Gonzalez, U.S. Attorney's Office, Plano, TX, for United States of America.
Ernest Gonzalez, U.S. Attorney's Office, Plano, TX, for United States of America.
ORDER ON MOTION FOR RELEASE
Christine A. Nowak, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Silester Raymond Rowe-Hodges's Opposed Emergency Motion for Release and Order of House Arrest with Electronic Monitoring Pending Trial ("Motion") [Dkt. 158]. Upon consideration of the Motion, as well as Government's Response in Opposition [Dkt. 159], all other relevant filings, and applicable authority, the Court finds that Defendant's Motion [Dkt. 158] should be DENIED . Defendant shall remain in custody.
BACKGROUND
Defendant Silester Raymond Rowe-Hodges is charged by Indictment out of the Eastern District of Texas with a violation of Title 21 U.S.C. § 846 —Conspiracy to Possess with the Intent to Distribute Cocaine [Dkt. 14]. The charged offense carries a punishment of a term of not less than ten (10) years and not more than life in imprisonment; a fine not to exceed ten (10) million dollars, or both; and a term of supervised release of at least five (5) years. See 21 U.S.C. § 841(b). The Government previously moved to detain Defendant pursuant to 18 U.S.C. § 3142(f)(1) and (f)(2) [Dkt. 146]. A detention hearing was held on February 21, 2020 [Dkt. 150], and Defendant was ordered detained pending trial on February 26, 2020 [Dkt. 153].
As stated in the Court's February 26 Order of Detention Pending Trial, pursuant to 18 U.S.C. § 3142(e)(3), a rebuttable presumption exists in this case that no condition or combination of conditions will reasonably assure Defendant's appearance at trial and/or the safety of the community. See United States v. Trosper , 809 F.2d 1107, 1110 (5th Cir. 1987) (reaffirming that the presumption against pretrial release arises based on the indictment's allegations). In addition to the applicability of the rebuttable presumption, the very nature of drug offenses constitutes a danger to the community, which may justify pretrial detention. See United States v. Morales , No. 4:11CR3, 2011 WL 3651355, at *3 (E.D. Tex. Aug. 19, 2011) ; see also United States v. Mathes , 593 F. App'x 391, 392 (5th Cir. 2015) ; United States v. Morris , 608 F. App'x 299, 300 (5th Cir. 2015). This Court expressly held, following a contested detention hearing, that Defendant had not rebutted the presumption that there is no condition or combination of conditions on which Defendant could be released that Defendant would not pose a flight risk and/or constitute a danger to the community. Defendant has now filed a motion asking the Court to reconsider the issue of detention [Dkt. 158]. Defendant's Motion does not assert a specific legal basis for his request for release pending trial; he merely vaguely references the Bail Reform Act. The Court assumes Defendant relies upon 18 U.S.C. § 3142(f)(2)(B), which allows a Court to reopen a detention hearing and reconsider the original detention decision when new information that has a material bearing on the detention decision comes to light. Mathes , 593 F. App'x at 392 (citing 18 U.S.C. § 3142(f)(2) ). In his Motion, Defendant requests release from custody due to concerns related to the spread of the novel coronavirus ("COVID-19") and his pre-existing asthma condition [Dkt. 158]. Defendant contends that, because he is in custody, he is at extreme risk of contracting COVID-19, and he cites in support certain CDC declarations, WHO and various news reports, and letters written to Attorney General Barr [Dkts. 158 at 2-8; 158-2]. Defendant submits "[t]he local jails in this district have not, to date, taken any precautionary measures that counsel is aware of to stem the spread of this virus ..." [Dkt. 158 at 8-9]. Defendant also claims that his asthma places him at a higher risk if he were to contract COVID-19 [Dkt. 158 at 9]. Defendant proffers no evidence related to the diagnosis and/or severity of his asthma condition or any medications that he has been prescribed for such condition while incarcerated; Defendant merely states "[h]e suffers from pre-existing asthma conditions that require him to use a home nebulizer on a regular basis" [Dkt. 158 at 9]. Defendant argues that considering the COVID-19 pandemic, and his asthma condition, he should be released and placed on "house arrest" with electronic monitoring under the supervision of his mother as third-party custodian [Dkt. 158 at 13]. Defendant contends that release to supervision by his mother and the use of electronic monitoring will ensure he is not a danger to the community, as well as his appearance in court [Dkt. 158 at 13].
DISCUSSION
Request to Reopen Detention Hearing under 3142(f)
In determining whether there are conditions of release that will reasonably assure the appearance of a defendant and the safety of the community, the court is to consider "(1) the nature and circumstances of the offense charged"; "(2) the weight of the evidence against the person"; "(3) the history and characteristics of the person"; and "(4) 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). Section 3142(f) permits a court to reopen a pretrial detention hearing:
if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.
18 U.S.C. § 3142(f)(2)(B). The Court finds, here, that Defendant has offered no new information or evidence that has a material bearing on the issue of whether there are conditions of release that will reasonably assure his appearance and the safety of any other person and the community.
While the Court undoubtedly recognizes the seriousness of the COVID-19 pandemic, Defendant's general concerns about the risk posed apply to every prisoner. The pandemic does not, in and of itself, create a material change in circumstances warranting a renewed evaluation of a prior detention order. See United States v. Munguia , No. 3:19-CR-191-B (03), 2020 WL 1471741, at *4 (N.D. Tex. Mar. 26, 2020) (denying reopening of issue of detention where the defendant's argument would be an argument for releasing all detainees); see also United States v. Ayala-Calderon , No. 4:19-CR-00276-ALM-KPJ, 2020 WL 1812587, at *2 (E.D. Tex. Apr. 8, 2020) (finding general concerns about COVID-19 apply to every prisoner); United States v. Okhumale , No. 3:20-CR-122-L, 2020 WL 1694297, at *6 (N.D. Tex. Apr. 7, 2020) ("While [d]efendant's concerns about the pandemic are not without merit, that alone is insufficient to warrant release without consideration of the Section 3142(g) [detention] factors."); United States v. Wright , No. 3:18-CR-635-N, 2020 WL 1694298, at *5 (N.D. Tex. Apr. 7, 2020) (holding similarly); United States v. Kerr , No. 3:19-CR-296-L, 2020 WL 1529180, at *3 (N.D. Tex. Mar. 31, 2020) ("[T]he court cannot [ ]release every detainee who may be at risk of contracting COVID-19, as it would then be required to release all detainees.").
Considering the rapid progress of information and change in circumstances related to the COVID-19 pandemic, the Court expounds in connection with this point that release, or at least reopening of the issue of detention, may be justified in specific situations and/or circumstances not present here related to the COVID-19 pandemic.
Numerous federal courts outside of Texas have similarly found the COVID-19 pandemic standing alone insufficient to support a change in circumstances justifying release. See e.g., United States v. Fitzgerald , No. 2:17-CR-00295-JCM-NJK, 2020 WL 1433932, at *2 (D. Nev. Mar. 24, 2020) ("Defendant's argument ... applies equally to anyone in custody or, for that matter, at the halfway house or anywhere else in this community or any other. Defendant's argument applies equally to every detainee in detention; however, the Court cannot release every detainee at risk of contracting COVID-19 because the Court would then be obligated to release every detainee. Therefore, the Court finds Defendant's COVID-19 argument unpersuasive."); United States v. Dodd , No. 20-CR-0016-NEB-HB, 2020 WL 1547419, at *2 (D. Minn. Apr. 1, 2020) (finding the COVID-19 pandemic does not in and of itself raise a change in circumstances for a defendant); United States v. Zamorano , No. 1:19-CR-531-WJM, 2020 WL 1820498, at *5 (D. Col. Apr. 10, 2020) ("The [c]ourt is not convinced the COVID-19 pandemic is a material change of circumstances warranting a renewed evaluation of a prior detention order without more."). Courts instead should evaluate the particularized risks posed to an individual defendant. See United States v. Bell , applying the four (4) factors identified in United States v. Clark , No. 19-40068, 2020 WL 1446895, at *3 (D. Kan. Mar. 25, 2020) —(1) the original grounds for the defendant's pretrial detention, (2) the specificity of the defendant's stated COVID-19 concerns, (3) the extent to which the proposed release plan is tailored to mitigate or exacerbate other COVID-19 risks to the defendant, and (4) the likelihood that the defendant's proposed release would increase COVID-19 risks to others—to evaluate the impact of COVID-19 on the "pretrial release calculus." No. 17-CR-20183, 2020 WL 1650330, at *6 (E.D. Mich. Apr. 3, 2020). The Court has considered each of these factors herein.
Moreover, as to Defendant's bald allegation that the local jails have taken no precautions related to the virus, Defendant has presented no specific considerations relating to him. He has not demonstrated that he has been exposed to the virus as a result of his incarceration at either of the facilities at which he has been housed: the Collin County Detention Center and/or the Denton County Jail. To the contrary, the Government represents that on March 20, 2020, the EDTX Criminal Chief contacted a Supervisory Deputy with the EDTX USM, who reported that there are no confirmed or even suspected cases of COVID-19 at any of the pretrial holding facilities in the District and, specific to this case, none in the Collin County Detention Center [Dkt. 159 at 2]. The Court has further confirmed that, as of the date of this Order, no confirmed or suspected cases of COVID-19 are present in the Collin County Detention Center. Denton County Jail has had one suspected case of COVID-19; however, the Court has confirmed that case involved a state inmate who has had no contact with the federal inmate population at the Denton County Jail. In addition, the Government specifically delineates preventative measures presently in place at the Collin County Detention Center and noted that the Collin County Detention Center has a full-time clinical director, who is a medical doctor, and a health services administrator, who is a registered nurse [Dkt. 159 at 2-3]. Denton County Jail similarly has preventative measures in place. Moreover, the USMS for the Eastern District of Texas has confirmed that all of the facilities at which it houses federal detainees for the Sherman Division are implementing practices to protect detainees in accordance with CDC guidelines. Defendant has presented absolutely no countervailing argument or evidence that adequate precautions (consistent with those recommended by the CDC) are not being taken in the facilities at which Defendant has been housed, including specifically the Collin County Detention Center and the Denton County Jail. His generalized concerns are insufficient to justify release.
Defendant urges in his Motion that release is necessary because Washington State's medical system is already overloaded and that it is almost a certainty that an outbreak of COVID-19 will occur at FDC SeaTac where Defendant is housed [Dkt. 158 at 11]. Such references are in error and appear to result from the "copying and pasting" of text from motions filed for the benefit of other defendants in other courts across the nation. Defendant Rowe-Hodges is currently housed in the State of Texas. No arguments have been presented by defense counsel as to the precautions (or lack thereof) in the local jail facilities. To reiterate, Defendant has not shown that he has been exposed to COVID-19 at the Collin County Detention Center or Denton County Jail, or that these facilities are unable to or failing to take measures to protect inmates from the spread of COVID-19.
In the context of the 3142(g) factors, the only factor to which Defendant's Motion could potentially relate is the third factor, the history and characteristics of the person, which allows the Court to consider an individual's "physical and mental condition." 18 U.S.C. § 3142(g)(3)(A). As discussed supra , Defendant contends his asthma places him in a heightened risk category which poses a grave risk to his health should he not be released pending trial. "According to the CDC, persons with underlying medical conditions such as asthma are at a higher risk of developing serious COVID-19 illness." See, e.g., United States v. Thomas , No. 3:18-CR-428-N, 2020 WL 1694302, at *3 (N.D. Tex. Apr. 3, 2020) (citing Basank v. Decker , No. 20 Civ. 2518 (AT), 449 F.Supp.3d 205, 211–12 (S.D.N.Y. Mar. 26, 2020) ). Defendant's health, including the higher risk to him as a result of any alleged asthmatic condition, is an extremely important consideration and is not taken lightly by this Court. However, on the record before the Court, the fact that Defendant has asthma and is at a higher risk is insufficient to meet his burden. See id. ; see also United States v. Martin , No. PWG-19-140-13, 447 F.Supp.3d 399, 403–04 (D. Md. Mar. 17, 2020) (finding that the defendant's underlying medical conditions, which placed him at a higher risk for COVID-19, were alone insufficient to overcome proffer regarding prison staff's practices to protect detainees, and that the defendant had failed to overcome the presumption of detention). No information is provided to the Court regarding the severity of Defendant's alleged asthma condition, or any prescribed medications he is taking for such condition while incarcerated. Moreover, the preponderance of the evidence at the detention hearing showed that Defendant was a flight risk and a danger to the community. Defendant's promise to comply with conditions of release and to stay at his mother's house if released does not overcome the rebuttable presumption invoked by the government, especially considering his past failure to report. "It also does not allay concerns for the safety of pretrial services officers who will have to install equipment in order to supervise him, and the United States Deputy Marshals who will have to go out and find and arrest him if he does not comply with any conditions of release, in the midst of the current pandemic." United States v. Thomas , No. 3:18-CR-428-N, 2020 WL 1694302, at *4 (N.D. Tex. Apr. 3, 2020) ; see also United States v. Bell , No. 17-CR-20183, 2020 WL 1650330, at *7 (E.D. Mich. Apr. 3, 2020). (recognizing that the defendant's release would increase the risk of others contracting COVID-19); United States v. Aiad-Toss , No. 4:19-CR-00521, 2020 WL 1514482, at *2 (N.D. Ohio Mar. 30, 2020) (noting that releasing a defendant to home detention and electronic monitoring unduly burdens pretrial services officers, who must perform installation and monitoring). In sum, Defendant has not identified new, particularized information that would shift the balance of the 3142(g) factors on which the Court based its Order of Detention; reconsideration is not warranted.
The Basank Court cites the following sources: People at Risk for Serious Illness from COVID-19, Centers for Disease Control (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html ("Older people and people of all ages with severe underlying health conditions—like heart disease, lung disease and diabetes, for example—seem to be at higher risk of developing serious COVID-19 illness."); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, Centers for Disease Control (Mar. 22, 2020) https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html (listing, among other medical diagnoses, "moderate to severe asthma," "heart disease," "obesity," and "diabetes" as conditions that trigger higher risk of severe illness from COVID-19).
See United States v. Legard , No. PWG-19-0137, 2020 WL 1434120, at *2 (D. Md. Mar. 24, 2020) (denying the defendant's motion for release even though he suffered from asthma ); United States v. Martin , No. CR PWG-19-140-13, 447 F.Supp.3d 399, 403–04 (D. Md. Mar. 17, 2020) (same); United States v. Kahn , No. 19-CR-80169, 2020 WL 1582279, at *5-7 (S.D. Fla. Apr. 2, 2020) (same); United States v. Johnson , No. 2:17-CR20489, 2020 WL 1821099, at *3-4 (E.D. Mich. Apr. 10, 2020) (same); United States v. Pate , No. 8:17-CR-00236-PWG-1, 2020 WL 1694368 (D. Md. Apr. 7, 2020) ("The bottom line question for the Court is: does the new information that the defendant suffers from asthma and is, therefore, particularly vulnerable to complication if exposed to COVID-19 combined with the information presented at the original detention hearing now establish by clear and convincing evidence that the defendant will not pose a danger to the safety of any other person or the community if released? The Court again finds that, even considering this new information, the defendant cannot carry his burden of proof."); United States v. Pritchett , No. 19-280, 2020 WL 1640280, at *3-4 (W.D. Pa. Apr. 2, 2020) (denying release because vulnerability due to asthma did not outweigh original reasons for detention).
"Defendant has a pending state court case in Donley County, stemming from a charge for possession of marijuana under 50 lbs., more than 5 lbs. Defendant at the time of the events underlying the instant charge was serving a term of probation on this charge. Defendant failed to report for probation and absconded from supervision. Such behavior does not reflect and/or does not indicate that Defendant would be able to comply with any conditions of release entered by this Court. A motion to adjudicate was filed on September 1, 2017. Following hearing, Donley County Community Supervision and Corrections officer, Mark White, confirmed to pretrial services Defendant's previous violation of probation. Mr. White further confirmed his agency's recommendation that Defendant's probation be revoked and that a term of imprisonment be imposed." [Dkt. 153].
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For the reasons set forth herein, it is ORDERED that Defendant Silester Raymond Rowe-Hodges's Opposed Emergency Motion for Release and Order of House Arrest with Electronic Monitoring Pending Trial is DENIED . Defendant has failed to meet his burden to demonstrate that the Court should reconsider the finding of detention. Defendant shall remain in custody.