United States v. Duncan
| Decision Date | 08 April 2020 |
| Docket Number | Case No. 18-40030-01-HLT |
| Parties | UNITED STATES of America, Plaintiff, v. Bryan S. DUNCAN, Defendant |
| Court | U.S. District Court — District of Kansas |
Christine E. Kenney, Office of United States Attorney, Topeka, KS, Colin D. Wood, Office of United States Attorney, Wichita, KS, for Plaintiff.
Carl A. Folsom, III, Office of Federal Public Defender, Topeka, KS, for Defendant.
Angel D. Mitchell, U.S. Magistrate Judge The two-count indictment charges Defendant Bryan S. Duncan with distribution and possession of child pornography. Shortly after Mr. Duncan was arrested in March of 2018, the court held a pretrial detention hearing. The court ordered Mr. Duncan detained pending trial, and he has remained in custody since. On July 9, 2019, he appeared in court and, pursuant to a plea agreement, pleaded guilty to possession of child pornography (Count 2). The remaining Count 1 for distribution of child pornography remains subject to dismissal at sentencing. This matter now comes before the court on his Motion for Release from Custody Prior to Sentencing. (ECF No. 58.) While Mr. Duncan awaits sentencing, he seeks temporary release pursuant to 18 U.S.C. § 3145(c) because he contends he is at an increased risk of contracting the virus that causes the disease COVID-19 while he is incarcerated and because his HIV-positive status puts him at an increased risk of suffering severe illness if he were to become infected. He also invokes the "compelling reasons" standard under 18 U.S.C. § 3142(i).
Mr. Duncan's concerns regarding COVID-19 are legitimate and are also felt by inmates across the county as well as society at large. But that does not change the applicable legal standards. He is subject to mandatory detention, which means that § 3145(c) requires him to show by clear and convincing evidence that, if he were released, he is not likely to flee or pose a danger to the safety of others. He has not met this burden. Mr. Duncan previously tried to flee arrest and still presents a serious flight risk. He also poses a danger to the safety of others as a twice-convicted sex offender who plans to reside—in the midst of the COVID-19 pandemic—with his 78-year-old mother who has underlying health issues. On this basis alone, the court denies Mr. Duncan's motion pursuant to § 3145(c).
The court also denies Mr. Duncan's motion pursuant to § 3142(i) because that statute does not apply to defendants who are subject to mandatory detention pending sentencing. But even if that statute did apply, Mr. Duncan has not demonstrated a compelling reason such that his release is necessary under the Clark framework. With no confirmed cases of COVID-19 or an unmanaged outbreak at the facility that houses Mr. Duncan and more than 3,000 confirmed cases in the state where he seeks to reside, it would be speculative to say whether the release plan he proposes truly mitigates Mr. Duncan's health risks rather than potentially exacerbating them. Moreover, Mr. Duncan's release plan increases the health risks to others. For these reasons, explained in more detail below, Mr. Duncan's motion is denied.
On March 7, 2018, a grand jury returned a two-count indictment charging Mr. Duncan with possession and distribution of child pornography. (ECF No. 1.) He appeared in front of Magistrate Judge K. Gary Sebelius on March 27, 2018, for a detention hearing. (ECF No. 10.) The government proffered that the Federal Bureau of Investigations had determined that a computer eventually associated with Mr. Duncan was using a file-sharing program to share sexually explicit images of minors, including at least one video depicting an adult male digitally penetrating a female infant. (See also ECF No. 63 ().) Investigators executed a search warrant on Mr. Duncan's residence. They found additional electronic devices underneath his bed that contained other sexually explicit images and videos of minor children.
When the U.S. Marshal's Service ("USMS") and other task force officers ("TFO") arrived at Mr. Duncan's apartment with an arrest warrant on March 21, 2018, members of the USMS knocked on Mr. Duncan's third-floor apartment door while other officers went to the rear of the building. They found Mr. Duncan hanging from a second-floor balcony, attempting to flee. Mr. Duncan ultimately fell on top of a TFO, who sustained minor injuries to the bridge of his nose.
At the detention hearing, the government urged the court to consider Mr. Duncan's prior criminal history and his history of failing to comply with conditions. Mr. Duncan was previously convicted in 2005 of possession and receipt of child pornography. He was sentenced to 36 months imprisonment. In 2009, while he was still on probation for his earlier child pornography conviction, he was convicted of credit card fraud. According to the government, five different times he faced a motion to revoke probation, including two allegations of failing to appear. He was on supervision for that conviction when he committed the currently charged offenses.
The court ordered Mr. Duncan detained pending trial. (ECF No. 11.) The court found by a preponderance of the evidence that no condition or combination of conditions would reasonably assure Mr. Duncan's appearance because he posed a serious flight risk. (Id. at 1.) In making that determination, the court considered the nature and circumstances of the offenses charged and the fact that the offenses involved minor victims. (Id. at 2.) The court also considered Mr. Duncan's history and characteristics, making specific findings as follows: Mr. Duncan appears to have a mental condition that may affect whether he will appear; he has engaged in criminal activity while under supervision; he has a significant prior criminal record; he has a record of failing to appear at court proceedings and a record of failing to comply with conditions of probation. The court specifically noted that, at the time of arrest, Mr. Duncan was already on probation and jumped from a third-floor balcony in an attempt to evade arrest. (Id. ) Mr. Duncan has remained in USMS custody since the court ordered him detained.
Mr. Duncan ultimately entered into a plea agreement. On July 9, 2019, he pleaded guilty to Count 2 of the indictment—possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), which carries a maximum sentence of not more than 10 years imprisonment. (ECF Nos. 42, 43.) It is undisputed that this offense subjects him to mandatory detention pending sentencing pursuant to 18 U.S.C. § 3143(a)(2). Mr. Duncan currently awaits sentencing, which the district judge postponed to May 12, 2020, in accordance with this court's Administrative Order 2020-3. That order restricts certain non-emergency criminal hearings in light of the recent outbreak of coronavirus disease ("COVID-19") caused by the virus SARS-CoV-2.
COVID-19 is also the basis for Mr. Duncan's current motion for release. Mr. Duncan is housed at the Leavenworth Detention Center in Leavenworth, Kansas, operated by CoreCivic. He argues his HIV-positive status puts him at a higher risk of becoming seriously ill from COVID-19 and that he is unable to follow social distancing recommendations to avoid infection because he is incarcerated. He further argues that crowded prison facilities create an ideal environment for virus transmission; that CoreCivic lacks the resources to engage in adequate screening and testing of inmates, correctional staff, and other care and service providers entering the facility; and that CoreCivic's current measures are inadequate to stop an outbreak at Leavenworth. Mr. Duncan proposes that the court release him to live with his mother in St. James, Missouri, and mandate location monitoring.
In 1990, Congress enacted the Mandatory Detention for Offenders Convicted of Serious Crimes Act ("the Mandatory Detention Act") as an amendment to the Bail Reform Act to require detention of defendants found guilty (or pleading guilty) to offenses described in 18 U.S.C. § 3142(f)(1)(A)-(C) pending their sentencing hearings. 18 U.S.C. § 3143(a)(2). The crime to which Mr. Duncan has pleaded guilty fits within § 3142(f)(1)(A). Therefore, he is subject to mandatory detention under § 3143(a)(2).
Mr. Duncan now moves for release prior to sentencing pursuant to 18 U.S.C. § 3145(c). That statute provides in pertinent part as follows:
A person subject to detention pursuant to section 3143(a)(2) ... and who meets the conditions of release set forth in section 3143(a)(1) [] or (b)(1) [governing release or detention pending appeal], may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.
18 U.S.C. § 3145(c). For Mr. Duncan to obtain release under this section, he must meet both of the conditions set forth in § 3143(a)(1), and he must make "a clear showing of exceptional reasons why his detention would not be appropriate." United States v. Kinslow , 105 F.3d 555, 557 (10th Cir. 1997). Under § 3143(a)(1), he must show "by clear and convincing evidence, that he [is] not [1] ‘likely to flee or [2] pose a danger to the safety of any other person or the community if released.’ " Id. (quoting 18 U.S.C. § 3143(a)(1) ).
Mr. Duncan has not shown by clear and convincing evidence that he is not likely to flee if he were released from custody. At the detention hearing more than two years ago, the court found that he was a flight risk largely because he attempted to flee during his arrest. Specifically, at the time of the arrest, Mr. Duncan was already on probation and jumped from a third-floor balcony in an attempt to evade arrest. ( Id. ) He now tries to downplay that as an "impulsive decision." He argues that, since then, he has...
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...already pled guilty, § 3142(i) applies to him. The Court finds that § 3142(i) does not apply to defendant. See United States v. Duncan,452 F. Supp. 3d 1016, 1024 (D. Kan. 2020) (finding that § 3142(i) does not apply to a person seeking release pending sentencing); United States v. Felix, 45......