United States v. Gulley
| Decision Date | 19 February 2021 |
| Docket Number | CRIMINAL NO. 3:18-9 |
| Court | U.S. District Court — Western District of Pennsylvania |
| Parties | UNITED STATES OF AMERICA v. WILLIE GENE GULLEY, JR., Defendant. |
MEMORANDUM OPINION
Willie Gene Gulley, Jr. filed the instant Emergency Motion to Reconsider Detention (ECF No. 133) requesting his temporary release pursuant to 18 U.S.C. § 3142(i) due to his concerns about contracting COVID-19 while detained pending trial. Gulley also argues that his pretrial confinement violates the Fifth Amendment's Due Process Clause and the Eighth Amendment's Cruel and Unusual Punishments Clause. The Court held an evidentiary hearing and Gulley and the Government submitted post-hearing briefs. For the following reasons, the Court DENIES Gulley's Motion.
Gulley is charged with two counts of distribution of less than one hundred grams of a mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). (ECF No. 1) The charges stem from two instances in which Gulley allegedly sold heroin to a confidential informant in March 2018. At the time, Gulley was subject to two terms of supervised release imposed by this Court as a result of two prior federal felony drug trafficking convictions. Gulley was arrested on March 21, 2018, and made his initial appearance the same day. (ECF No. 7) At his initial appearance, he was detained pending a detention hearing. (ECF No. 6) After his initial appearance, but before a detention hearing was held, two no bond warrants were lodged as detainers based on the allegations in this case constituting violations of the terms of his supervised release.
Pretrial Services filed a report ("PTS Report") concluding that, because Gulley is "detained at two previous supervised release cases[,] . . . bond is moot at this time." (PTS Report at 7) At the hearing, Magistrate Judge Pesto ordered Gulley detained, stating that (ECF No. 31)
Gulley filed the instant Emergency Motion to Reconsider Detention on November 12, 2020, asking the Court to release him on bond due to the COVID-19 pandemic. (ECF No. 133) The Court held a hearing on the Motion by videoconference on December 17, 2020. (ECF No.142) Gulley filed a post-hearing brief on December 30, 2020. (ECF No. 145) The Government filed a post-hearing brief on January 7, 2021. (ECF No. 146) The motion is fully briefed and ripe for disposition (ECF Nos. 133, 142, 145, 146).
Under 18 U.S.C. § 3142, the Court may "permit the temporary release of the person, 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." 18 U.S.C. § 3142(i). The defendant has the burden to show that § 3142(i) permits his temporary release. United States v. Davis, No. 2:20-CR-121-12, 2020 WL 4496581, at *2 (W.D. Pa. Aug. 4, 2020). The defendant must demonstrate: (1) that his temporary release is necessary for the preparation of his defense or another compelling reason, and (2) thathe could be released to the custody of the United States marshal or another appropriate person. Id.
Under the "necessary for preparation of the person's defense" prong of § 3142(i), the defendant must demonstrate that temporary release is necessary, not just that "it would be helpful, preferable, or even ideal for a defendant's trial preparations." United States v. Coggins, No. 1:20-CR-00033, 2020 WL 2217259, at *6 (M.D. Pa. May 7, 2020) (quoting United States v. Villegas, No. 2:19-CR-568-AB, 2020 WL 1649520, at *2 (C.D. Cal. Apr. 3, 2020)). "If federal courts had to order temporary release just because it would aid a defendant's ability to work with counsel, the exception in section 3142(i) would swallow all detention orders." Villegas, 2020 WL 1649520, at *2. The defendant must show why less drastic measures such as a request to continue the trial date or alternative means of communication would be inadequate. Villegas, 2020 WL 1649520, at *2.
Courts have evaluated concerns regarding COVID-19 as potentially falling within the "another compelling reason" prong. See United States v. Wilburn, No. 2:18-CR-115, 2020 WL 1899146, at *4 (W.D. Pa. Apr. 17, 2020). In the related context of compassionate release, the Third Circuit has held that COVID-19 alone is insufficient to warrant compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). The same rationale applies to temporary release, and therefore, the defendant must "present an individualized argument as to why temporary release is necessary[;] [g]eneralized or speculative arguments are insufficient." United States v. Watson, No. 19-CR-203, 2020 WL 2309204, at *2 (W.D. Pa. May 8, 2020). "Temporary release may be most appropriate when the defendant suffers from a condition that makes him or her immunocompromised—something identified by public health officials asmaking [a] person at 'high risk' for serious complications from COVID-19." Id. at *3 (quoting United States v. France, No. 02:16-cr-196, ECF No. 325, p. 1-2 (W.D. Pa. May 5, 2020)). The defendant's "compelling reason" must be evaluated "in light of the 'backdrop of the Bail Reform Act as a whole.'" Id. (quoting Wilburn, 2020 WL 1899146, at *4). Thus, the Court must "consider the [d]efendant's health as well as his dangerousness and risk of flight." Watson, 2020 WL 2309204, at *3; see Wilburn, 2020 WL 1899146, at *4.
In analyzing a request for temporary release based on COVID-19 concerns, courts have evaluated several factors: (1) the specificity of the defendant's stated COVID-19 concerns, (2) the original grounds for the defendant's pretrial detention, (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. United States v. Carter, No. 18-cr-561-1, 2020 WL 3412571, at *6 (E.D. Pa. June 22, 2020) (quoting United States v. Deshields, No. 190-cr-99, 2020 WL 2025377, at *3 (M.D. Pa. Apr. 27, 2020)). These factors are not required to be weighed equally but are considered "as a whole to help guide the court's determination as to whether a 'compelling reason' exists such that temporary release is 'necessary.'" United States v. Doe, No. 18-cr-315-11, 2020 WL 5167553, at *4 (E.D. Pa. Aug. 31, 2020) (quoting United States v. Denmark, No. 19-15, 2020 WL 1984306, at *6 (M.D. Pa. Apr. 27, 2020)).
Gulley makes four arguments in favor of his release. First, he argues that his temporary release is necessary in light of COVID-19, his health conditions, and the insufficiency of the measures instituted by the Cambria County Prison to control the spread of COVID-19. Second,he argues that his continued detention in light of COVID-19 constitutes cruel and unusual punishment in violation of the Eighth Amendment. Third, he argues that he has been denied substantive due process because the Government, through the prison's policies, has acted with deliberate indifference with regard to the risk of COVID-19 being transmitted to individuals in the Cambria County Prison. Fourth, he argues that his right to counsel was interfered with because attorney in-person visits were suspended for two months at the Cambria County Prison due to COVID-19.
The Government argues that Gulley has not met his burden to show that temporary release is necessary. (ECF No. 146 at 5-6) The Government contends that Gulley's access to counsel has not been impeded: he has been working with his attorney for two years, phone communications were never suspended or restricted, and Gulley has refused telephone calls and in-person visits from his attorney on multiple occasions since the COVID-19 pandemic began. (Id. at 6)
Gulley contends that he suffers from Type 2 diabetes, high blood pressure, sleep apnea, and severe obesity. (ECF No. 133 at 4) The Government concedes that Gulley suffers from obesity, Type 2 Diabetes, and hypertension. (ECF No. 146 at 7) An individual with severe obesity or Type 2 diabetes is "at an increased risk for severe illness from the virus that causes COVID-19." Centers for Disease Control and Prevention ("CDC"), People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last visited Feb. 18, 2021) ("CDC COVID-19 Medical Conditions"). An individual with high blood pressure "might be at an increased risk for severe illness from the virus that causes COVID-19." Id. The CDC does not include sleep apnea on the list of conditions that place, or might place, an individual at an increased risk for severe illness from the virus that causes COVID-19. See id. Therefore, the Court finds that Gulley suffers from conditions that place him at an increased risk for severe illness from the virus that causes COVID-19.
After Gulley filed the instant motion, he tested positive for COVID-19. After a person recovers from COVID-19, the risk of re-infection is low. The CDC has stated that, although cases of reinfection with COVID-19 have been reported, such cases of reinfection are "rare." CDC, Reinfection with COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/your-health/reinfection.html (last visited, Feb. 18, 2021). In the compassionate release context, "a number of courts have found that an inmate recovering from the Covid-19 virus weigh[s] against release based on the risk of contracting the virus."...
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