UNITED STATES v. SMITH (2020)

ORDER

Defendant Corey Quentez Smith moved to have this court reconsider its order of detention and release Smith pending his final revocation hearing.

Because Smith has not offered new information that has a material bearing on the issue of whether there are conditions of release that will reasonably assure the appearance of Smith and the safety of any other person and the community, this court must deny Smith's motion.

Alternatively, even if Smith's submission to the court were considered to be new and material, Smith still has not established by clear and convincing evidence that there are conditions or a combination of conditions that reasonably will assure the safety of the community and Smith's presence at his final revocation hearing.

I—Background

On June 9, 2020, the probation officer submitted a petition for warrant or summons for an offender under supervision which alleged that Smith violated the terms of his supervised release in eight ways. (Doc. 228). Among other things, the petition alleged that Smith committed felony and misdemeanor offenses in Mitchell County, Georgia, when he was driving under the influence of drugs.

On June 9, 2020, the District Court ordered a warrant for Smith's arrest. (Id.). On June 26, 2020, the United States Marshals Service executed the arrest warrant. (Doc. 238).

On July 10, 2020, the undersigned conducted a detention hearing. At the hearing, the undersigned determined that Smith had not established by clear and convincing evidence that there are conditions or a combination of conditions that reasonably will assure the safety of the community and Smith's presence at his final revocation hearing. (Doc. 240). Accordingly, the undersigned ordered that Smith be detained pending his final revocation hearing. (Id.).

On July 22, 2020, at the request of the parties, the District Court deferred setting a final revocation hearing. (Doc. 241). The parties had advised the District Court that “the parties need additional time to prepare for the VOSR hearing ․” (Id. at 1). The District Court, therefore, ordered the parties to file a status report within thirty days.

On August 21, 2020, the parties filed a joint status report. (Doc. 243). In that report, the parties asked the District Court not to schedule Smith's final revocation hearing until a criminal case pending against Smith in Georgia is resolved, because the crimes alleged in that case are the root of some of the alleged violations set forth in the petition for warrant or summons for an offender under supervision pending in this case. (Id. at 3). Counsel for Smith also asked the District Court to “consider releasing Defendant from custody so that he can return to Georgia and address his state charges.” (Id. at 3-4).

On August 24, 2020, the District Court placed the case in abeyance and ordered the parties to file status reports every 90 days. (Doc. 244).

II—Eligibility for Detention

Rule 32.1(a)(6) of the Federal Rules of Criminal Procedure states that a “magistrate judge may release or detain” a defendant under 18 U.S.C. § 3143(a)(1).

III—Standard for Reopening a Detention Hearing

Section 3142(f)(2) of Title 18 of the United States Code provides:

The [detention] hearing 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.

18 U.S.C. § 3142(f)(2).

Thus, to warrant the reopening of a detention hearing, a defendant must show that: (1) there is new information that did not exist or was unknowable by the defendant at the time of the hearing; and (2) the new information has a material bearing on the issue of whether there are conditions of release that will reasonably assure a defendant's appearance at trial and the safety of any other person in the community. United States v. Watson, 475 F. App'x 598, 600 (6th Cir. 2012); United States v. Peralta, 849 F.2d 625, 626 (D.C. Cir. 1988). “Courts have interpreted this provision strictly, holding that hearings should not be reopened if the evidence was available at the time of the initial hearing” or is not material. United States v. Ward, 63 F. Supp. 2d 1203, 1206-07 (C.D. Cal. 1999); see United States v. Simpson, 408 F. App'x 830, 831 (5th Cir. 2011); United States v. Lizardi-Maldonado, 275 F. Supp. 3d 1284, 1287 (D. Utah 2017). Furthermore, even if a defendant submits new information that is material, the statute's “use of the word ‘may’ indicates discretion on the part of the district court. Thus, there is no requirement to reopen a detention hearing ․” Watson, 475 F. App'x at 601.

Here, Smith offers one “fact” that was unknown to him at the time of his detention hearing: On August 24, 2020, the District Court entered an order placing Smith's case in abeyance and—at Smith's request—deferred “setting the VOSR hearing until after the disposition of Defendant's state case in Georgia.” (Doc. 244). The undersigned will assume that, for purposes of section 3142(f)(2), this constitutes “information” which was not known to Smith at the time of his detention hearing.

To warrant the reopening of his detention hearing, however, Smith also must show that this information is “material.” Information is “material” for purposes of section 3142(f)(2) only if it indicates that the defendant is less likely to flee or fail to appear or that the defendant is less likely to pose a danger to the community or others. Watson, 475 F. App'x at 600. The information provided by Smith does not indicate that he is more likely to attend his final revocation hearing. The information also does not indicate that Smith is less likely to pose a danger to the community or any other person. Accordingly, the information is not material. For this reason alone, this court is not authorized to reopen the detention hearing.

Smith seems to suggest that he should be released because—in light of the Covid-19 pandemic—the Georgia court will not expeditiously adjudicate his criminal charges, and therefore Smith's period of federal detention may be lengthy while he awaits prosecution in Georgia. The length of Smith's detention, however, is not considered “material” under 3142(f)(2). United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989) (holding that the length of “current or potential future detention” cannot “be considered under this section since it is not material to the issue of risk of flight or dangerousness”); United States v. Gotti, 776 F. Supp. 666, 669 (E.D.N.Y. 1991) (same).

Smith also argues that “it is contrary to the interests of justice that he continue to be held indefinitely without an opportunity to pursue his defenses in the Georgia case.” (Doc. 245 at 3). This court fails to see how Smith is being denied an opportunity to pursue any defenses in his Georgia case in light of Smith's concession that at “the present time, there is nothing scheduled regarding those charges against Defendant in the Georgia case ․” (Id. at 2). The Assistant United States Attorney assigned to Smith's case also has offered to attempt to work with the Marshals Service to have Smith transported to Georgia so that he may “pursue his defenses” in the Georgia prosecution. (Doc. 247 at 4 n.1).

It may be that Smith is attempting to make an argument that his continued detention violates the Due Process Clause of the Fifth Amendment. Some courts have held that extended pretrial detention can violate the Due Process Clause. United States v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993) (“[W]hen detention becomes ‘excessively prolonged,’ it may no longer be reasonable in relation to the regulatory goals of detention, in which event a violation of due process occurs.”); United States v. Portes, 786 F.2d 758, 768 (7th Cir. 1985) (“We recognize that, at some point, the length of delay may raise due process objections ․”). But Smith is not being detained pretrial. He already has been convicted and sentenced and allegedly has violated the terms of his supervised release. “Defendants on supervised release enjoy less freedom than those who have finished serving their sentences.” United States v. Holena, 906 F.3d 288, 295 (3d Cir. 2018). Furthermore, federal law allows the reimprisonment of defendants who violate conditions of supervised release even when they were initially sentenced to the statutory maximum term. See 18 U.S.C. § 3583(e); United States v. Proctor, 127 F.3d 1311, 1313 (11th Cir. 1997). Smith, therefore, has not demonstrated that his continued detention violates the Due Process Clause.

Furthermore, to the extent continued detention would violate the Due Process Clause, Smith has a remedy readily available. He can simply ask the District Court to hold his revocation hearing. Recall that Smith previously requested that the District Court not conduct a final revocation hearing until his Georgia criminal charges are resolved. (Doc. 243). Since learning that—in light of Covid-19—the Georgia court will not adjudicate his criminal case promptly, Smith has not moved to schedule his final revocation hearing. Once his final revocation hearing is held, Smith necessarily will no longer be detained pending his final revocation hearing. Therefore, if he desires the termination of his pre-revocation-hearing detention, he merely has to request a prompt revocation hearing. Because he can end his pre-revocation-hearing detention at any time, Smith has not demonstrated that his detention violates the Due Process Clause.

IV—Restatement of The Court's Previous Findings

Even if Smith had submitted new information that was material, this court would then be required to consider whether Smith met his burden. Rule 32.1(a)(6) places the burden on the defendant to establish that he will not flee or pose a danger to any other person or to the community. A defendant shall be detained unless there is clear and convincing evidence that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released. 18 U.S.C. § 3143(a)(1).

“Danger to the community” “was not meant to refer only to the risk of physical violence.” United States v. Tortora, 922 F.2d 880, 884 (1st Cir. 1990). “The concept of safety of the community under § 3142(e) is not limited to the danger of physical violence, but rather ‘refers to the danger that the defendant might engage in criminal activity to the detriment of the community.’ ” United States v. Boy, 322 F. App'x 598, 600 (10th Cir. 2009) (quoting United States v. Cook, 880 F.2d 1158, 1161 (10th Cir. 1989)); United States v. Abdullahu, 488 F. Supp. 2d 433, 438-39 (D. N.J. 2007) (noting that “danger to the community does not only include physical harm or violent behavior”). For example, the harm to society caused by trafficking in narcotics—or using narcotics to an extent that will cause harm to others—is “encompassed within Congress' definition of ‘danger.’ ” United States v. Leon, 766 F.2d 77, 81 (2d Cir. 1985).

Clear and convincing evidence exists when the evidence induces “an abiding conviction that the truth of its factual contentions are ‘highly probable.’ ” Colorado v. New Mexico, 467 U.S. 310, 316, 104 S. Ct. 2433, 2437-38, 81 L.Ed.2d 247 (1984). “Clear and convincing evidence” entails more than a preponderance of the evidence, but less than evidence establishing a fact beyond a reasonable doubt. Addington v. Texas, 441 U.S. 418, 423-25, 99 S. Ct. 1804, 1808-09, 60 L.Ed.2d 323 (1979).

In determining whether there are conditions of release that reasonably might assure the safety of other persons and the community, courts must consider:

(1) “the nature and circumstances of the offense charged, including whether the offense is a crime of violence, ․ or involves ․ a controlled substance ․ ”;

(2) “the weight of the evidence against the person”;

(3) “the history and characteristics of the person,” including “the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings”; 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).

This court previously found that Smith had not demonstrated by clear and convincing evidence that a condition or combination of conditions reasonably would assure his appearance and that a condition or combination of conditions could assure the safety of another person or the community. The information offered by Smith in his motion to reopen the detention hearing does not change that finding.

V—Conclusion

For the reasons set forth above, Smith's motion to reopen the detention hearing is DENIED.

SO ORDERED, this 4th day of December, 2020.

Michael J. Frank, United States Magistrate Judge