United States v. Terrone, Case No. 3:19-CR-00058-RCJ-CLB

• Decision Date: 10 April 2020
• Docket Number: Case No. 3:19-CR-00058-RCJ-CLB
• Citation: 454 F.Supp.3d 1009
• Parties: UNITED STATES of America, Plaintiff, v. Joseph George TERRONE, Jr., Defendant.
• Court: U.S. Court of Appeals — Third Circuit

454 F.Supp.3d 1009

UNITED STATES of America, Plaintiff,

v.Joseph George TERRONE, Jr., Defendant.

Case No. 3:19-CR-00058-RCJ-CLB

United States District Court, D. Nevada.

Signed April 10, 2020

Randolph J. St. Clair, United States Attorney's Office, Reno, NV, for Plaintiff.

ORDER

Carla Baldwin, UNITED STATES MAGISTRATE JUDGE

Before the court is Defendant Joseph George Terrone, Jr.'s ("Terrone") Emergency Motion to Reopen Detention Hearing Due to the COVID-19 Pandemic. (ECF No. 19.)¹ On January 15, 2020, Magistrate Judge William G. Cobb ordered Terrone detained pending trial. (ECF Nos. 10, 11.) Terrone now seeks temporary release pursuant to 18 U.S.C. § 3142(i) for what he contends are compelling reasons related to the recent COVID-19 global pandemic. (ECF No. 19.) The Government opposed the motion, (ECF No. 20), and Terrone replied. (ECF No. 21.) The court has thoroughly reviewed the filings, and for the reasons stated below, the court denies Terrone's motion. (ECF No. 19.)

I. BACKGROUND AND PROCEDURAL HISTORY

On December 12, 2019, a federal grand jury indicted Terrone for one count of Receipt of Child Pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1), and for one count of Possession of Child Pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). (ECF Nos. 1, 3.) On January 15, 2020, Terrone was arrested in Reno, Nevada. (ECF No. 13.) The same day, Terrone appeared for a detention hearing before Magistrate Judge Cobb, where he was ordered detained pending trial. (ECF Nos. 10, 11.) Terrone is currently housed at the Washoe County Detention Facility ("WCDF"), operated by the Washoe County Sheriff's Office ("WCSO"), in Reno, Nevada. (ECF No. 19 at 1.) Terrone seeks an order for temporary release from custody for what he contends are compelling reasons—namely that the health risk to Terrone is a compelling reason to grant release. (Id. at 3.) Terrone notes that correctional settings "offer no escape and little to no space for social distancing or other similar recommendations" made by experts to combat COVID-19. (Id. )

On March 11, 2020, the World Health Organization ("WHO") officially classified COVID-19, a disease caused by a new strain of coronavirus, as a pandemic.² According to the Centers for Disease Control ("CDC"), at the time this Order was written, there were 427, 460 total cases of COVID-19 in the United States, and 14,696 deaths.³ As of April 10, 2020, there were 2,571 positive cases of COVID-19 and 86 deaths in the State of Nevada⁴ , with only 315 active cases and 10 deaths in Washoe County (as of April 9, 2020)⁵ . The actual number of people infected by the virus is likely much larger, given the current capacity for testing, and the rate at which COVID-19 is spreading and affecting communities around the world is alarming.⁶

The CDC identifies certain categories of individuals at a higher risk of severe illness, including older adults (65 and older) and people of any age who have serious underlying medical conditions as a higher risk for severe illness from COVID-19.⁷ The following conditions could make a person higher risk: people with chronic lung disease or moderate-to-severe asthma, people with serious heart conditions, people who are immunocompromised, including cancer treatment, people of any age with severe obesity or certain underlying medical conditions, particularly if not well controlled, such as those with diabetes, chronic kidney disease undergoing dialysis, or liver disease. Id.

Nevada Governor Steve Sisolak declared a State of Emergency on March 12, 2020.⁸ Schools, government agencies, casinos and nonessential businesses have closed and will continue to be closed at least through the end of April.⁹ Governor Sisolak, on April 1, 2020, issued a directive for Nevada residents to stay at home. Id.

The District of Nevada has also taken measures to protect the public, staff, and litigants from the risks of COVID-19. See Temporary General Orders 2020-02, 2020-03, 2020-04, 2020-05. While no cases of WCDF inmates being infected have been reported, it is likely only a matter of time before that occurs. As of April 3, 2020, three WCSO employees have tested positive for the virus, two deputies and one civilian employee.¹⁰ WCSO immediately began working in coordination with the Washoe County Health Department to implement recommended measures, such as single point entry and screening for all employees and visitors. Id. All those needing to enter WCSO for business will have their temperature taken and answer basic screening questions before admittance. Id. Additionally, WCSO began instituting additional precautions such as increased medical screenings for arrestees, increased education and awareness for both inmates and staff, and increased sanitation efforts throughout the entire WCSO. Id. There is no doubt the danger posed by the virus is real, with entire economies and some healthcare systems around the world collapsing or on the verge of collapsing as the world attempts to contain the virus spread.

II. LEGAL STANDARDS

"A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He had only a judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest." Bell v. Wolfish , 441 U.S. 520, 536-37, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (internal quotations omitted). The government may detain someone on a federal offense to ensure his presence at trial and may subject him to the restrictions and conditions of detention so long as those conditions do not constitute punishment or otherwise amount to a constitutional violation. Id.

The Bail Reform Act ("BRA") of 1984 mandates every person charged with a federal offense be given a detention hearing. 18 U.S.C. § 3142(a). The fundamental precept of the BRA mandates the release of individuals so long as the court can reasonably be assured the defendant does not pose a flight risk or danger to the community. 18 U.S.C. § 3142. To the extent that conditions, or a combination of conditions, can be fashioned to reasonably provide for such assurances, the individual must be released, as detention is "the carefully crafted limited exception." Id. ; see also United States v. Salerno , 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). If the judge finds the defendant poses a danger to public safety or a flight risk, the defendant may be ordered detained. 18 U.S.C. § 3142(f).

A. Section 3142(f) Reopening of Detention Hearing

Section 3142(f)(2) permits a judicial officer to reopen a detention hearing at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the detention hearing and that has a material bearing on the issue of 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. Two of the detention release factors (among others) to be considered by the judicial officer are (1) the person's "physical and mental condition" (§ 3145(g)(3)(A)), and, (2) the nature and seriousness of the danger to any person or the community that would be posed by the person's release (§ 3145(g)(4)).

Courts interpret this provision strictly. United States v. Bararia , No. 2:12-cr-00236-MMD-GWF, 2013 WL 1907782, at *4 (D. Nev. Mar. 12, 2013) ; e.g. , United States v. Ward , 63 F.Supp.2d 1203, 1206-07 (C.D. Cal. 1999) ; United States v. Dillon , 938 F.2d 1412, 1415 (1st Cir. 1991). The rule requires the movant, whether prosecutor or defendant, establish: (1) that information now exists that was not known to the movant at the initial detention hearing, and (2) the new information is material to release conditions regarding flight or dangerousness. Id. ; see also United States v. Bowens , 2007 WL 2220501 (D. Ariz. Jul. 31, 2007) (citing United States v. Hare , 873 F.2d 796 (5th Cir. 1989) ). Generally, once a detention hearing is reopened, it is reopened to allow the court to receive any information, within reason, not submitted at the initial hearing, allowing the new information to be considered in context. Id. If the information was available at the time of the original hearing, the detention hearing need not be reopened. United States v. Turino , 2014 WL 5261292, at *1 (D. Nev. Oct. 15, 2014) (citing Ward , 63 F.Supp.2d at 1206 ).

Courts may consider the defendant's physical ailments as a mitigating factor regarding the danger the defendant poses to society. United States v. Adams , 2019 WL 3037042, at *2 (D. Ore. Jul. 10, 2019). Once the defendant provides evidence regarding his or her physical health that mitigates dangerousness, the government must show through clear and convincing evidence the defendant still poses a danger to society. Id. ; 18 U.S.C. § 3142(f)(2)(B). Release for a presumptively dangerous defendant is appropriate only when the defendant produces evidence of an extraordinary, life-threatening medical condition the jail or prison facility cannot treat and further shows the safety of the community may be reasonably assured through the conditions of release. Id.

Other district courts have considered COVID-19 concerns in the context of the more commonly used § 3142(f) pretrial detention framework, including the related subsections § 3142(e)(2)-(3) (statutory rebuttable presumptions) and § 3142(g) (Bail Reform Act factors). For example, the district court in United States v. Martin , considered the defendant's argument concerning his medical conditions (asthma, high blood pressure, and diabetes) considering the COVID-19 pandemic in a § 3142(f) analysis, holding that resolving an appeal of a detention order must be done as an individualized assessment of the Bail Reform factors. ––– F.Supp.3d ––––, –––– – ––––, 2020 WL 1274857, at *3-4 (D. Md. 2020) (finding that defendant's confirmed medical conditions alone are insufficient to rebut the Government's proffer that correctional and...