UNITED STATES v. PARMER (2020)

ORDER AFFIRMING PRE-TRIAL RELEASE

I. INTRODUCTION

Defendant Richard Parmer, currently in custody at Santa Rita County Jail, moves for pre-trial release under 18 U.S.C. § 3142. He argues the risks posed by COVID-19 and his need to prepare for his upcoming trial justify reconsidering his detention under § 3142(f)(2) and warrant supervised released. The government opposes the motion, highlighting Parmer's repeated infractions while on pre-trial release earlier in this litigation. Following a motion hearing, the assigned Magistrate Judge ordered Parmer released. However, she briefly stayed the order's effect to afford the government opportunity to appeal under § 3145, which it did. After considering the matter de novo based on the motions filed by both parties and the full pre-trial record in this matter, the Court denies the government's motion to revoke bail and affirms the Magistrate Judge's order of release pursuant to the terms she imposed.

II. BACKGROUND

Parmer is charged in a two-count indictment with violations of 18 U.S.C. § 2252(a)(2), distribution of child pornography, and 18 U.S.C. § 2252(a)(4)(B), possession of child pornography. Initially, following a detention hearing, Parmer was released on bail, subject to various conditions. He violated those conditions, however, by repeatedly failing drug tests and ignoring home confinement orders. This disregard for the conditions imposed culminated in an incident in which San Francisco police arrested Parmer for threatening his roommate. Although Parmer was never charged in connection with this incident, it compelled the assigned Magistrate Judge to ordered Parmer detained going forward, pending trial.

Parmer has been in custody at Santa Rita County Jail since July 31, 2019 and has had no disciplinary issues in the intervening eight months. On April 6, 2020, following the first confirmed case of COVID-19 at Santa Rita, Parmer again moved for pre-trial release. He argued that his age and mental health issues place him at a heightened risk of suffering dangerous complications from COVID-19, and that it is unreasonable to assume Santa Rita could adequately care for Parmer during this pandemic. He further claimed that, due to Santa Rita's coronavirus-related visitation restrictions, release is warranted to enable Parmer to prepare for his upcoming trial.

The government opposed the motion, arguing Parmer remains a danger to the community, as the assigned Magistrate Judge concluded in her prior order revoking bail. According to the government, Parmer's poor track record while on supervised released, coupled with his criminal history which includes a prior conviction for sexual contact with a 12-year-old girl by force or threat of force, make clear he should not be afforded a second chance on pre-trial release.

After conducting a hearing on April 9, 2020, the Magistrate Judge ordered Parmer released, but stayed his release pending a further hearing on April 13, 2020 to discuss where Parmer would reside while out on bail. At the subsequent hearing, the Magistrate Judge imposed release conditions that included Parmer's release to HealthRite 360, a dual-diagnosis residential treatment program in Dublin, California, electronic monitoring, and restricted interned access, prompting this appeal of that order by the Government. Parmer's trial date is currently set to begin in three weeks, and his pre-trial conference is scheduled for April 29, 2020.¹

III. LEGAL STANDARD

The Court reviews the pretrial detention order of a magistrate judge de novo. United States v. Koenig, 912 F.2d 1190, 1191 (9th Cir.1990). Although the Court considers the evidence presented to the magistrate judge, it accords no deference to the magistrate judge's findings of fact and ultimate conclusion. Id. at 1193.

Under 18 U.S.C. § 3142(b), a judicial officer should release a defendant on personal recognizance or appearance bond, unless the officer “determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” A court may impose conditions that it deems necessary to guard against a defendant's flight or danger to the community. See 18 U.S.C. § 3142(c). In deciding whether conditions could reasonably assure the defendant's appearance and the safety of the community, a court considers four factors: “(1) the nature and circumstances of the offense charged ․; (2) the weight of the evidence against the person; (3) the history and characteristics of the person ․; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.” 18 U.S.C. § 3142(g). To prevent a defendant's release, the government must prove that a defendant is a danger to the community by clear and convincing evidence, or it must prove that a defendant is a flight risk by a preponderance of the evidence. United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir.1985). For cases involving a violation of 18 U.S.C. § 2252(a)(2) (distribution of child pornography), the Bail Reform Act of 1984 established a rebuttable presumption in favor of detention. 18 U.S.C. § 3142(e)(3)(E).

A detention hearing under 18 U.S.C. § 3142(f)(2) “may be reopened, before or after a determination by the judicial officer, 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 hearing and that has a material bearing on the issue 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.”

IV. DISCUSSION

Although the COVID-19 situation at Santa Rita is certainly troubling, that risk alone is insufficient to justify Parmer's pre-trial release. Parmer is 55 years of age, which does not place him in an age group particularly at risk.² See Centers for Disease Control & Prevention Home Page, https://www.cdc.gov, (“Older adults 65 years and older are at higher risk for severe illness.”) (last visited April 14, 2020). Nor has Parmer established that his bipolar disorder or PTSD place him at heightened risk. Therefore, while undoubtedly serious, the ongoing pandemic alone is not, in Parmer's case, a sufficient justification to warrant a change in his pre-trial status.

Other changed circumstances, however, do justify granting Parmer's pre-trial release. See 18 U.S.C. § 3142(f). First and foremost, Parmer now has access to a dual-diagnosis residential treatment facility, HealthRite 360, which was not available when Parmer was first released on bail. Parmer's prior infractions largely resulted from his drug use, particularly his use of methamphetamine. He also had difficulty coexisting with his roommate during his prior period of pre-trial release, and that conflict ultimately resulted in the revocation of his bail. His new placement should alleviate both these risks. Furthermore, Parmer's behavior while detained is reassuring, as he has apparently avoided any disciplinary issues over the past eight months. Together, these circumstances suggest he will not pose a significant danger to the community when residing at HealthRite 360 and that he can now be trusted to comply with orders on pre-trial release. Id. §§ 3142(g)(3)(A), 3142(g)(4).

The other section 3142(g) factors likewise weigh in favor of release. Although the weight of the evidence against Parmer is admittedly strong, this “is the least important of the various factors.” United States v. Hir, 517 F.3d 1081, 1090 (9th Cir. 2008) (internal quotation omitted). As for the offenses charged, sharing child pornography online is a serious offense, but the risk of further harm to society is mitigated by the restrictions on Parmer's internet use imposed by the Magistrate Judge. See 18 U.S.C. § 3142(g)(1). This greatly reduces his likelihood of again engaging in the charged conduct while on release. See id. § 3142(g)(4).

Lastly, with trial imminent, Parmer has an acute need to prepare. The COVID-related restrictions currently in place at Santa Rita, however, make communicating with counsel exceptionally difficult. In-person visits with counsel are prohibited, and there are limited opportunities for video conferencing as Santa Rita adapts to the rapidly evolving situation. Under 18 U.S.C. § 3142(i), temporary release to the custody of an appropriate person is permissible if such release is necessary for trial preparation. While the circumstances here are not sufficient for section 3142(i) to serve as an independent ground for release, this need to prepare does, at the margins, further tip the “individualized evaluation” in favor of supervised release.

V. CONCLUSION

Based on the foregoing, Parmer has overcome the presumption that “no condition or combination of conditions will reasonably assure [his] appearance ․ and the safety of the community.” 18 U.S.C. § 3142(e). There is not clear and convincing evidence that Parmer will be a danger to the community under the new terms of release, nor is there a preponderance of the evidence showing that Parmer presents a flight risk. The Magistrate Judge's Order of Release is affirmed, and the government's motion is denied. Parmer shall be released forthwith, subject to all the conditions imposed by the Magistrate Judge.

IT IS SO ORDERED.

FOOTNOTES

1.   These dates are subject to change due to scheduling difficulties presented by the ongoing pandemic.

2.   Some court documents indicate Parmer is a year younger. See Order for Release, Dkt. No. 131, at 3.

RICHARD SEEBORG, United States District Judge