UNITED STATES v. HERMAN (2020)

DECISION AND ORDER

On September 19, 2019, defendant Michael Herman (“Herman”) waived indictment and pleaded guilty to conspiracy to possess with intent to distribute and distribute 500 grams or more of methamphetamine. By statute that plea subjects Herman to a minimum term of imprisonment of 10 years to life. The United States Sentencing Guidelines’ calculation recommends a sentence of 262-327 months. The plea was entered pursuant to a written Plea Agreement and sentencing is currently scheduled for August 20, 2020.

Now pending before the Court is Herman's motion (Dkt. #20) filed by counsel for release from custody pending sentence based principally on the ongoing COVID-19 pandemic. The Government filed a Response (Dkt. #23) opposing Herman's release pending sentence. The Probation Office also prepared a Report (Dkt. #22) relative to Herman and his status at the Seneca County Jail where he is currently detained.

The Court is certainly aware of the COVID-19 pandemic which has severely affected this country and the world. But, I do not believe that Herman has demonstrated that he should be released based on his guilty plea, the law concerning release pending sentence and the particular facts relating to his medical circumstances.

First of all, as the Government notes, Herman has pleaded guilty and therefore his status relative to release is different from one who has not been found guilty. The statute, 18 U.S.C. § 3143(a), presumes that there will be detention pending sentence and establishes several conditions which are required before the Court can even consider release. The burden is on the defendant to show by clear and convincing evidence that he has not likely to flee or pose a danger. Herman has failed to meet the required tests under Section 3143(a).

Next, this is not the first time this Court has considered release for Herman. After Herman's initial appearance, the Probation Department interviewed Herman and recommended detention. The Government requested detention and on May 10, 2019, a detention hearing was conducted before United States Magistrate Judge Marian W. Payson. Magistrate Judge Payson, thereafter, issued an Order of Detention finding that there was no condition or combination of conditions which would reasonably assure the safety of any other person and the community.

Herman appealed that Detention Order to this Court and the Court conducted a de novo review. This Court affirmed the decision of the Magistrate Judge and ordered the defendant detained based on both danger, as well as risk of flight. Both Magistrate Judge Payson and this Court found that before Herman pleaded guilty, detention was warranted. As mentioned above, Herman's status is now different. Having pleaded guilty, he has a much heavier burden to obtain release.

In its response, the Government sets forth at pages 5-7 facts relative to the plea which supports the Government's contention that the evidence in this case is strong. In addition, although Herman has entered into a Plea Agreement which could affect his sentence, as it stands now he faces a minimum term of imprisonment of 10 years with very high Sentencing Guideline calculations. This potential for a very severe sentence certainly creates a risk of flight.

The Government also points out Herman's significant prior criminal record and the fact he was on release at some point during the time he committed the instant federal offense.

Concerning the COVID-19 pandemic, I do not believe Herman has established significant issues in that regard to warrant release. Herman is 38 years old and therefore relatively young. Although he claims several health issues, it appears that high blood pressure is the only documented health problem. Herman is being treated for a thyroid condition, but does not suffer from any preexisting condition which makes him especially vulnerable to the COVID-19 pandemic. According to the Report from Probation (Dkt. #22), Herman does receive medication for this thyroid and blood pressure. During the bail interview prior to the detention hearing, Herman did not report any physical health issues. Herman is currently detained at the Seneca County Jail and the Government sets forth in detail, in its Response on page 12, the protocol and procedures used at the jail to deal with the COVID-19 issues. It appears that the jail is acting appropriately and apparently successfully because according to both the Government and Probation, the Seneca County Jail has not had a single case of the COVID-19 virus involving either an inmate or member of the staff.

CONCLUSION

Defendant Michael Herman's motion (Dkt. #20) for release from custody pending sentence is in all respects DENIED and Herman is Ordered detained pending sentence.

IT IS SO ORDERED.

DAVID G. LARIMER, United States District Judge