UNITED STATES v. BOTHRA (2021)

ORDER

Defendant Dr. Rajendra Bothra appeals the district court's denial of his motion for temporary release under 18 U.S.C. § 3142(i) based on his deteriorating health and concerns related to the COVID-19 pandemic. 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. Shelton, No. 19-14, 2020 WL 1815941, at *3 (W.D. Ky. Apr. 9, 2020); United States v. Smoot, No. 19-20, 2020 WL 1501810, at *2 (S.D. Ohio Mar. 30, 2020). We review the denial of release under § 3142(i) for an abuse of discretion. United States v. Bothra, No. 20-1364, 2020 WL 2611545, at *2 (May 21, 2020) (order); United States v. Scarborough, 821 F. App'x 598, 600 (6th Cir. 2020) (order).

First, Bothra contends that the district court applied the incorrect standard for reopening a detention hearing instead of the correct standard for temporary release. The district court, however, cited both standards and independently considered Bothra's request for release as one for reopening his proceedings and for temporary release.

Second, the release must be necessary for the preparation of Bothra's defense or for another compelling reason. See 18 U.S.C. § 3142(i). 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) (order). Rather, we have considered whether a defendant's individual circumstances support his temporary release, citing with approval the case-by-case factors adopted in United States v. Clark, 448 F. Supp. 3d 1152, 1157 (D. Kan. 2020). Id. Although the district court here did not cite this test, it generally considered these factors. The district court restated its previous findings, and those of this Court, that Bothra is a flight risk with the motive, means, and place to flee. It acknowledged that while Bothra may have health issues that would place him in a higher risk category if he contracted COVID-19, these health issues were not new, had previously been considered by the district court, and the Bureau of Prisons (“BOP”) has been able to adequately address and treat them.

While some courts have found certain types of heart and respiratory diseases sufficient to warrant temporary release under 3142(i), they have weighed those concerns against the defendant's risk of flight or danger to the community. See United States v. Pimentel, No. 19-300, 2020 WL 2064046, at *3–5 (D. Utah Apr. 29, 2020). And, critically, courts in this circuit have consistently held that, where no set of conditions can reasonably assure the defendant's appearance, the effects and dangers of COVID-19 do not warrant release under § 3142(i). See Bothra, 2020 WL 2611545, at *2; United States v. Patino, 452 F.Supp.3d 705, 710–12, (E.D. Mich. 2020); United States v. Brown, No. 19-131, 2020 WL 1914818, at *4–5 (W.D. Ky. Apr. 20, 2020); United States v. Turner, No. 19-37-4, 2020 WL 1943024, at *2–3 (W.D. Ky. Apr. 22, 2020); United States v. Black, No. 19-261, 2020 WL 1950779, at *1–2 (S.D. Ohio Apr. 23, 2020); Smoot, 2020 WL 1501810, at *2. The district court properly weighed Bothra's medical conditions against his substantial flight risk. Both the district court and this Court have previously found Bothra's wife to be an inappropriate custodian, and Bothra did not propose his daughter as a third-party custodian before the district court. While the district court did not address the degree to which Bothra's release plan would mitigate or exacerbate COVID-19 risks, this is of less import given Bothra's diagnosis of, and recovery from, COVID-19 following his filing of this appeal. Thus, the district court did not abuse its discretion in denying temporary release based on Bothra's health concerns.

The district court's order is AFFIRMED.