UNITED STATES v. SCARBOROUGH (2020)

ORDER

Michael Scarborough appeals an order denying his emergency motion for temporary release under 18 U.S.C. § 3142(i)—based on health concerns relating to COVID-19 and his current inability to help prepare his defense—and a subsequent order denying reconsideration. The government opposes reversal. The parties have waived oral argument. The facts and legal arguments are adequately presented on the briefs; thus, we unanimously agree that oral argument is not necessary. Fed. R. App. P. 34(a)(2)(C).

A defendant must be detained pretrial if, after conducting a hearing, the district court determines “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). A district court “may ․ permit the temporary release of [a defendant], in the custody of a United States marshal or another appropriate person, to the extent that the [district court] 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 of establishing circumstances warranting temporary release pursuant to § 3142(i).” United States v. Bothra, No. 20-1364, 2020 WL 2611545, at *2 (6th Cir. May 21, 2020) (citations omitted). This court reviews the denial of a motion for reconsideration for an abuse of discretion. Id. at *1 (citing United States v. Brown, 449 F.3d 741, 750 (6th Cir. 2006)). The underlying judgment—the district court's denial of Scarborough's § 3142(i) request—is also reviewed for abuse of discretion. Id. at *2.

First, “the release must be ‘temporary,’ no longer than needed to complete the ‘necessary’ defense preparations or to resolve the other ‘compelling’ circumstances.” Id. (citation omitted). Before the district court, Scarborough did not request temporary release with a certain end date, and the district court did not consider his failure to request an end date. In his briefs to this court, he again does not propose an end date, and appears to seek release pending his trial, for which a date has not yet been set.

We recently addressed what constitutes a compelling reason for temporary release, finding that generalized fears of contracting COVID-19, without more, do not constitute a compelling reason. United States v. McGowan, No. 20-1617, 2020 WL 3867515, at *2 (6th Cir. July 8, 2020). Rather, we cited with approval the case-by-case factors adopted in United States v. Clark, No. 19-40068-01, 448 F.Supp.3d 1152, 1155–57 (D. Kan. Mar. 25, 2020). Id. Under that test, courts:

will evaluate at least the following factors: (1) the original grounds for the defendant's pretrial detention, (2) the specificity of the defendant's stated COVID-19 concerns, (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. The court will not necessarily weigh these factors equally, but will consider them as a whole to help guide the court's determination as to whether a “compelling reason” exists such that temporary release is “necessary.”

Clark, 448 F.Supp.3d at 1157 (quoting 18 U.S.C. § 3142(i)).

Although the district court here did not cite this test, it generally considered these factors. It briefly outlined its prior findings supporting Scarborough's danger to the community if he were to be released pending trial. It acknowledged that Scarborough may have health issues that would place him in a higher risk category if he contracted the virus. But it found he was no more vulnerable while detained than he would be in the community, where the virus was rampant and where he would have to seek outside medical attention. It also found that Scarborough's generalized fears of contracting COVID-19 did not constitute a compelling reason for his release. Moreover, Scarborough “does not suffer from any pre-existing respiratory issues and his medical conditions appear to have been well managed.” See United States v. Hamilton, No. 19-CR-54-01, ––– F.Supp.3d ––––, ––––, 2020 WL 1323036, at *2 (E.D. N.Y. Mar. 20, 2020). In his brief, Scarborough alleges that he experienced several medical issues throughout 2019: he was hospitalized and required surgery for glaucoma; he suffered a series of strokes that “impacted his mental and physical condition”; and he had been diagnosed with diabetes and high blood pressure. He alleged that these conditions, as well as his age and African American race, rendered him more susceptible to COVID-19. Although Scarborough's underlying health conditions might place him at higher risk if he contracts COVID-19, they, alone, do not support his release. See United States v. Sanders, No. 2:19-cr-20288, 2020 WL 2320094, at *6–7 (E.D. Mich. May 11, 2020) (hypertension); Clark, 448 F.Supp.3d at 1159–60 (diabetes); United States v. Mitchell, No. 2:14-cr-00339, 2020 WL 3839632, at *6 (W.D. Wash. July 8, 2020) (race).

Scarborough did not propose a release plan before the district court. In his brief, Scarborough proposes that he be released to the custody of his wife and two adult children. However, besides stating that his movement would be severely restricted by court-ordered home confinement and stay-at-home orders, and that he would generally follow the necessary hygiene practices to mitigate the spread of COVID-19, Scarborough does not present a “tailored” plan regarding his COVID-19 risks. See Clark, 448 F.Supp.3d at 1155–57. Further, Scarborough's release to home confinement would put at risk his wife and children and the pretrial service officers supervising his release. See United States v. Nero, No. 17-cr-20183-5, 2020 WL 1672656, at *4 (E.D. Mich. Apr. 6, 2020). Thus, the district court did not abuse its discretion in denying either temporary release or reconsideration based on conditions created by the pandemic.

In determining what conditions require release for defense preparation, this court has evaluated whether pretrial release is “necessary” under § 3142(i), considering: “(1) the time and opportunity the defendant had to prepare for the trial and participate in his defense, (2) the complexity of the case and volume of information, and (3) expense and inconvenience associated with preparing while incarcerated.” Bothra, 2020 WL 2611545, at *2. Temporary release is not warranted when a defendant “has had ample time to prepare his defense․” Id. (citations omitted). The district court did not expressly consider whether Scarborough's ability to help in his defense was restrained. However, Scarborough's trial has no set date and he has been detained since late 2017, and he has had adequate access to his counsel throughout that time. But only recently has his access to in-person meetings with counsel been limited. Under these circumstances, and given the deferential standard of review, the district court did not abuse its discretion in denying temporary release or reconsideration on this basis.

The district court's orders are AFFIRMED.