United States v. Payne
| Decision Date | 08 February 2021 |
| Docket Number | CRIMINAL ACTION No. 20-222 |
| Parties | UNITED STATES OF AMERICA, v. ROBERT PAYNE |
| Court | U.S. District Court — Eastern District of Pennsylvania |
MEMORANDUM
Defendant Robert Payne brings this Motion To Set Bail (ECF No. 20) seeking release from custody after recently contracting COVID-19, arguing that his condition would be "better served by his release than his continued incarceration" and that there are conditions which would ensure the Defendant's appearance and the safety of the community. ECF No. 20 at 2-4. The Government opposes Defendant's Motion on the grounds that Mr. Payne's "condition appears well managed in a prison setting" and because his "criminal history, performance on supervision, as well as actions in this case all weigh heavily in favor of pre-trial detention." ECF NO. 21 at 1.
On August 4, 2020 a grand jury indicted and charged Mr. Payne with knowingly and intentionally distributing and aiding and abetting the distribution of heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. ECF No. 4.
The Government alleges that on or about October 22, 2018, law enforcement recorded a telephone call between Mr. Payne and a confidential source ("CS-1") discussing details of an illicit narcotics transaction to occur on the following day. ECF No. 21 at 2. On or about October 23, 2018, law enforcement, using CS-1, made a controlled purchase of 50 grams of heroin from Mr. Payne and his sister at Mr. Payne's residence. Id. Prior to the exchange, investigators set up fixed and mobile surveillance in and around the prearranged meeting location. Id.
CS-1 allegedly called Mr. Payne once he/she arrived at the location and Mr. Payne directed CS-1 to purchase the heroin from his sister, explaining that she sometimes distributes drugs on his behalf. Id. According to the Government, investigators observed CS-1 approach and enter the residence. Id. After a brief time, CS-1 exited the property and departed the area. Id. CS-1 reported to law enforcement that, while inside the property, Mr. Payne's sister sold him heroin in exchange for money on behalf of Mr. Payne. Id. The substance retrieved from CS-1 field-tested positive for heroin. Id. at 3. A laboratory test later confirmed the mixture weighed 50 grams and contained heroin and fentanyl. Id.
The Government filed its initial Motion for Pretrial Detention on September 29, 2020. ECF No. 11. Given the nature of Mr. Payne's charges, he is subject to arebuttable presumption under 18 U.S.C. § 3142(e)(3)(A) that there are no conditions or combination of conditions that could assure the safety of the community and Defendant's appearance at trial. Accordingly, after hearing argument on October 9, 2020, United States Magistrate Judge Timothy R. Rice ordered Mr. Payne detained pending trial. ECF No. 15. In his order, Judge Rice found that the government had proved by a preponderance of the evidence that "no condition or combination of conditions will reasonably assure the appearance of the defendant as required" and that "no condition or combination of conditions will reasonably assure the safety of other persons and the community, as required by Title 18, United States Code, Section 3142(e)." ECF No. 16 at 1.
Mr. Payne filed the instant Motion for Bail on January 6, 2021. See ECF. No. 20. The Motion in essence requests this Court to overturn Judge Rice's October 9, 2020 order and set bail in light of Mr. Payne's recent COVID-19 infection and because the Defendant is neither a risk of flight nor a danger to the community. Id. at 3-4. This Court's review of a Magistrate Judge's bail determination is de novo. See United States v. Delker, 757 F.2d 1390, 1394-95 (3d Cir. 1985).
Under 18 U.S.C. § 3142(e), a court is obligated to order a defendant detained pending trial after a hearing and upon a finding that "no condition or combinationof conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." A defendant is subject to a rebuttable presumption that he is a flight risk and dangerous where the court finds there is probable cause to believe that the defendant committed an offense under the Controlled Substances Act punishable by ten or more years of imprisonment. See 18 U.S.C. § 3142(e)(3)(A).
Once the rebuttable presumption is established, it is the defendant's burden to produce evidence that he will appear as required and will not pose a threat to the community. U.S. v. Carbone, 793 F.2d 559, 560 (3d Cir. 1986). In assessing whether a defendant has rebutted that presumption, courts must consider the factors enumerated in 18 U.S.C. § 3142(g). It is the Government's burden to prove either by a preponderance of the evidence that he is a flight risk or by clear and convincing evidence that he poses a danger to the safety of the community. United States v. Mastrangelo, 890 F. Supp. 431 (E.D. Pa. 1995); see also United States v. Perry, 788 F.2d 100, 115 (3d Cir. 1986) ().
The Bail Reform Act also contains a "limited safety valve provision" under 18 U.S.C. § 3142(i) which allows the court to "re-examine detention decisions 'to the extent that the judicial officer determines such release to be necessary forpreparation of the person's defense or for another compelling reason.'" United States v. Doe, CR 18-315-11, 2020 WL 5167553, at *4 (E.D. Pa. Aug. 31, 2020) (quoting United States v. Washington-Gregg, No. 19-331, 2020 WL 1974880, at *5 (M.D. Pa. Apr. 24, 2020)). For bail motions premised on the COVID-19 pandemic, "this re-examination does not take place in isolation" and courts have evaluated the following 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." Id. at *4 (quoting United States v. Carter, No. 18-561-1, 2020 WL 3412571, at *6 (E.D. Pa. June 22, 2020)).
In his Motion, Mr. Payne argues that he should be granted pretrial release as he is "neither a risk of flight nor a danger to the community." ECF No. 20 at 3. To support that point, Mr. Payne notes that he is a lifelong resident of Philadelphia and provides financial and emotional support to his two children who also live here. Id. Mr. Payne also points out that he recently contracted COVID-19 while in FDC custody. Id. As a result of his illness, Mr. Payne believes that "both he andthe FDC jail population in general, would be for [sic] better served by his release than his continued incarceration." Id. at 3-4.
Mr. Payne was working prior to his detention and, "based on information and belief," could resume his job as a welder if released. Id. at 4. If released, Mr. Payne intends to reside in a home owned by his sister Patrice Walker and would agree to "house arrest with electronic monitoring." Id.
On January 20, 2020 the Government filed its Response in Opposition to Defendant's Motion to Set Bail. See ECF No. 21. The Government argues that Mr. Payne's release is not warranted for two reasons. First, because Mr. Payne's COVID-19 illness "appears well managed in a prison setting." Id. at 1. Second, because Mr. Payne's "criminal history, performance on supervision, as well as actions in this case all weigh heavily in favor of pre-trial detention." Id.
To support its first point, the Government argues that the question of whether to release a defendant in light of COVID-19 depends on "whether an inmate would be at risk, according to the CDC, for a severe outcome from COVID-19." Id. at 7. Though the Government does not argue that Mr. Payne's COVID-19 diagnosis eliminates all risk of reinfection, it does contend that "the large majority of courts to address the matter have concluded that the risk ismitigated and compassionate release is not justified" where an inmate has received a COVID-19 diagnosis and apparently recovered without consequence. See id.
The Government then argues that Mr. Payne has failed to rebut the 18 U.S.C. § 3142(e) presumption in favor of detention. See id. at 9. Mr. Payne violated federal narcotics laws while on parole and despite having prior felony convictions for weapons and narcotics offenses.1 Id. In the Government's view, the fact that Mr. Payne contracted COVID-19 does not rebut the strong statutory presumption of detention attached to Mr. Payne's charged crimes. See id.
The Bail Reform Act provides a presumption that Mr. Payne is a danger to his community and a flight risk. See 18 U.S.C. § 3142(e)(1). This rebuttable presumption is triggered where the court finds there is probable cause to believe that the defendant committed an offense under the Controlled Substances Act punishable by ten or more years of imprisonment. See 18 U.S.C. § 3142(e)(3)(A). An indictment charging a defendant with such an offense is "sufficient to support a finding of probable cause triggering the rebuttable presumption of dangerousness."U.S. v. Sterling, 459 F. Supp. 3d 673, 677-78 (E.D. Pa. 2020) (quoting United States v. Suppa, 799 F.2d 115, 119 (3d Cir. 1986)). The indictment here charges Mr. Payne with possession with intent to distribute a heroin, an offense that carries a maximum 20 years' imprisonment and is sufficient to trigger the rebuttable presumption. See ECF No. 4; see also 21 U.S.C. § 841(b)(1)(C).
With the rebuttable presumption triggered, the burden then shifts to Mr. Payne to "produce some credible evidence forming a basis for his contention that he will appear and will not pose a threat to the community." Sterling, 459 F. Supp. 3d...
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