United States v. Harris, Criminal Action No. 19-356

• Decision Date: 27 March 2020
• Docket Number: Criminal Action No. 19-356
• Citation: 451 F.Supp.3d 64
• Parties: UNITED STATES, v. David HARRIS, Defendant.
• Court: U.S. District Court — District of Columbia

451 F.Supp.3d 64

UNITED STATES,

v.David HARRIS, Defendant.

Criminal Action No. 19-356

United States District Court, District of Columbia.

Signed March 27, 2020

Andrea Lynn Hertzfeld, Nicholas George Miranda, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States.

Eugene Ohm, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

The Court previously entered an Order, Dkt. 35, granting Defendant's emergency motion for release pending sentencing, Dkt. 28, and, in doing so, indicated that it would issue an opinion explaining the basis for its conclusions that (1) the safety valve from mandatory detention found in 18 U.S.C. § 3145(c) authorizes district court judges to grant relief in appropriate circumstances, and (2) the risks posed by the COVID-19 pandemic may at times, along with all of the other relevant circumstances presented in a particular case, satisfy the "exceptional reasons" standard.

I. BACKGROUND

A. Procedural Background

On August 1, 2019, Defendant was charged with Distribution of Child Pornography in violation of 18 U.S.C. § 2252(a)(2), an offense that carries a five-year mandatory minimum term of incarceration. Dkt. 1; 18 U.S.C. § 2252(b)(1). He made his initial appearance on August 6, 2019, Minute Entry (Aug. 6, 2019), and, three days later, Magistrate Judge Harvey heard the Government's motion for Harris to be detained pending trial pursuant to 18 U.S.C. § 3142. Dkt. 10 at 1.

Magistrate Judge Harvey concluded that, because Harris was charged under 18 U.S.C. § 2252(a)(2) and because there was probable cause that he had committed the offense, the rebuttable presumption that he posed a flight risk and danger to the community, if released, applied in his case. Id. at 11. Magistrate Judge Harvey found, however, that Harris had offered sufficient evidence to rebut the presumption that he was a flight risk by demonstrating that he had ample family support and that, when he "learned there was a warrant for his arrest, he stayed in contact with law enforcement and surrendered himself a few days later." Id. at 12. As to the dangerousness prong, however, Magistrate Judge Harvey concluded that Harris had not rebutted the presumption. Id. at 12–13. Although "a close case," Magistrate Judge Harvey ordered Harris detained because of the seriousness of the charged offense and because Pretrial Services lacked the resources to monitor his use of electronic devices if released. Id. Harris later moved for reconsideration of the detention order, but Magistrate Judge Harvey denied that motion, again noting the seriousness of the charge and Pretrial Services' inability to "monitor [Harris's] use of computers, smart phones, or the internet." Minute Order (Sept. 11, 2019).

On November 8, 2019, Harris pleaded guilty to one count of Distribution of Child Pornography in violation of 18 U.S.C. § 2252(a)(2), pursuant to a written plea agreement, and, because the parties did not seek any modification in the terms of his detention, the Court ordered that Harris remain detained pending his sentencing. Minute Entry (Nov. 8, 2019). On March 19, 2020, Harris filed an emergency motion for release from detention pending sentencing in light of the ongoing COVID-19 pandemic. Dkt. 28. The Government opposed that motion. Dkt. 29.

B. COVID-19

"COVID-19 is a serious disease." Dkt. 32-1 at 17 (Greifinger Decl. ¶ 4). Although COVID-19 is "characterized by a flu-like illness

," it is a far more deadly, with "5–35 times the fatality associated with influenza infections." Id. at 12 (Beyrer Decl. ¶ 5). COVID-19 is "highly infectious," with "each newly infected person ... estimated to infect on average 3 additional persons"—"only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity." Id. at 13 (Beyrer Decl. ¶ 10). At the moment, there "is no known cure or anti-viral treatment for COVID-19." Dkt. 32-1 at 17 (Greifinger Decl. ¶ 4). Experts have urged that the only way to mitigate the spread of the disease is for people to use preventive strategies, including "scrupulous hand hygiene and social distancing." Id. The Center for Disease Control and Prevention recommends keeping a distance of six feet from other people to minimize the possibility of infection, washing one's hands often with soap and water, and using a hand sanitizer that contains at least 60% alcohol. How To Protect Yourself , CDC (Mar. 4, 2020), available at https://tinyurl.com/uep9p6h. Slowing the spread of the disease is "critical," 15 Days to Slow the Spread , White House (2020), available at https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf, as a rapid spread can overwhelm local health infrastructure. COVID-19 causes prolonged serious illness, which can require "significant advanced support, including ventilator assistance for respiration and intensive care support." Dkt. 32-1 at 21 (Stern Decl. ¶ 6).

COVID-19 has become a "global pandemic and has been termed a global health emergency by the [World Health Organization]." Dkt. 32-1 at 12 (Beyrer Decl. ¶ 3). On March 13, 2020, the President declared a national emergency, and, as of the date of this opinion, there have been at least 85,381 cases across the country and at least 1,271 virus-associated deaths. Coronavirus in the U.S.: Latest Map and Case Count , N.Y. Times, available at https://tinyurl.com/t9j9fdw (last accessed Mar. 27, 2020). Experts expect an explosion of new cases in the days ahead. Id. In Virginia, Maryland, and the District of Columbia, there have been 1,277 confirmed cases of COVID-19. Coronavirus in the DMV: What You Need to Know , Washington Post, available at https://tinyurl.com/txwj5gp (last accessed Mar. 27, 2020). In response to the pandemic, the Mayor of Washington, D.C. has declared a state of emergency and has ordered the closure of all nonessential businesses, in line with orders issued around the country. Id.

COVID-19 poses a unique and "serious risk to inmates and workers in detention facilities." Dkt. 32-1 at 13 (Beyrer Decl. ¶ 11). "Facilities, including jails, prisons, and other closed settings" are "associated with high transmission probabilities for infectious diseases." Id. "A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases." Id. (Beyrer Decl. ¶ 14). "These include physical/mechanical risks such as overcrowding, population density in close confinement, insufficient ventilation, shared toilet, shower, and eating environments and limits on hygiene and personal protective equipment such as masks and gloves in some facilities." Id. "Additionally, the high rate of turnover and population mixing of staff and detainees increases likelihoods of exposure." Id. (Beyrer Decl. ¶ 15). "Infections that are transmitted through droplets," like COVID-19, "are particularly difficult to control in detention facilities, as 6-foot distancing and proper decontamination of surfaces is virtually impossible." Id. (Beyrer Decl. ¶ 13). It is perhaps for these reasons, that there have been "prison outbreaks of COVID-19 in multiple detention facilities in China." Id. (Beyrer Decl. ¶ 15). Given these facts, some experts opine that "an outbreak of COVID-19 among the U.S. jail and prison population is likely." Id. at 14 (Beyrer Decl. ¶ 19). To date, the D.C. Jail has reported only one case of COVID-19, D.C. Jail Inmate Tests Positive For Coronavirus , Washington Post (Mar. 26, 2020 6:26a.m. EST), available at https://www.washingtonpost.com/dc-md-va/2020/03/26/coronavirus-dc-maryland-virginia-updates/ (last accessed Mar. 26, 2020), but the risk of further infections seems likely.

II. ANALYSIS

A. Statutory Authority

Although Harris originally premised his emergency motion on 18 U.S.C. § 3142, Dkt. 28 at 1, that provision applies only to a person seeking release pending trial. 18 U.S.C. § 3142(a). Release pending sentencing, as relevant here, is governed by 18 U.S.C. § 3143, which requires that a court detain a person found guilty of a violent felony pending sentencing, absent certain narrow exceptions. Id. § 3143(a). Harris does not dispute that the crime he pleaded guilty to, Distribution of Child Pornography in violation of 18 U.S.C. § 2252(a)(2), qualifies as a crime of violence and that, accordingly, he is subject to § 3143(a)(2)'s mandatory detention provision. See id. ; 18 U.S.C. § 3156(a)(4) (defining a "crime of violence" to include any felony listed in chapter 110 of Title 18, which includes Harris's offense). Nor does Harris dispute that he qualifies for neither of the narrow exceptions set out in § 3143(a)(2).¹ Instead, he argues that the public health crisis created by COVID-19 constitutes an "exceptional reason[ ]" that, when balanced against the minimal risk that he poses to the community, justifies his release pending sentencing under 18 U.S.C. § 3145(c). Dkt. 31 at 1. The Government counters that the Court lacks authority to release Harris under that provision because, in the Government's view, the exceptional-reasons clause applies only to release determinations made by the courts of appeals. See Mar. 23, 2020 Hrg. Tr. (Rough at 18–19).

The Court begins, as it must, with the statutory text. See BP Am. Prod. Co. v. Burton , 549 U.S. 84, 91, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006). Section 3145(c) provides:

(c) Appeal from a release or detention order.—

An appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title. The appeal shall be determined promptly. A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under

...