United States v. Worrell ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DiSTRJCT OF COLUMBIA
UNITES ST A TES OF AMERICA,
Case No. 1:21-cr-00292-RCL
v.
* REDACTED*
CHRISTOPHER \VORRELL,
Defendant.
MEMORANDUM OPINION
After defendant Christopher Worrell was arrested on charges stemming from his
participation in the January 6, 2021 breach of the United States Capitol, Chief Judge Howell issued
an order detaining him pending trial. ECF No. 13. Defendant moved for emergency
reconsideration of that order on the basis of: among other things, the government's treatment of
his non-Hodgkin's lymphoma and his risk of contracting a severe COVID-19 infection. See ECF
No. 16-1. Chief Judge Howell denied that motion, and the Circuit affirmed. United States v.
Worrell, No. 21-3020, 2021 WL 2010795 (D.C. Cir. May 5, 2021 ). The case was later transferred
to the undersigned. Defendant then filed the present motion-his second emergency motion for
reconsideration-again arguing that inadequate medical treatment for his lymphoma and the risk
posed to him by COVJD-19 are reasons to reconsider the previous detention order. ECF No. 4 7-
1. After the government filed an opposition, ECF No. 49, the Court held a hearing on the motion
at which the defendant testified. Min. Entry 5/4/2021. In response to this Court's Order, the
government provided supplemental briefing, ECF No. 60, to which defendant replied, ECF No.
64.
Upon consideration of the parties' filings, ECF Nos. 47, 49, 60, 64, the arguments set forth
at the hearing, and the underlying record, the Court finds that there are no previously unknown
facts having a "material beariug" on the issue whether there arc conditions of release that will
reasonably assure the safety of others and the community. See 18 U.S.C. § 3142(f)(2). Nor has
defendant met his burden to show that there is a "compelling reason" for release under 18 U.S.C.
§ 3 J 42(i). Thus, for the reasons explained below, the Court will DENY defendant's emergency
motion for reconsideration, ECF No. 47.
I. BACKGROUND
A. Factual Allegations
The government has proffered the following evidence in its filings opposing defendant's
motion for pretrial release and defendant's motions for reconsideration of the order detaining him
pending trial. See ECF Nos. 9, l 9, 49, 60.
At approximately 1:00 P.M. on January 6, 2021, a joint session of Congress convened to
certify the Electoral College vote count for the 2020 Presidential Election. ECF No. 9 at 6. As
elected members of the U.S. Senate and House of Representatives met in separate chambers inside
the U.S. Capitol building, a large crowd gathered outside. Id. at 7. U.S. Capitol Police Officers,
as well as temporary and permanent security barriers, stood between the crowd and the Capitol.
Id
Capitol Police were unable to maintain these barriers. Id. Between 1:00 and 2:00 P.M.,
individuals from the crowd overwhelmed police barriers and barricades around the outside
perimeter of the U.S. Capitol grounds. Id. at 10. As the riotous crowd surged to the steps of the
Capitol building, a single line of law enforcement attempted to hold back the crowd from the
entrances to the building's interior. Id. Over the next half hour, members of the crowd exchanged
blows with, threw objects at, and pepper sprayed the officers attempting to hold back the crowd.
Id. Others grabbed and carried away law enforcement barriers-exposing the officers to the
crowd. Id.
2
At this precarious moment, defendant positioned himself next to a wooden stairway on the
side of the Capitol plaza, unclipped a canister of pepper-spray gel from his tactical vest, and
discharged a stream of pepper-spray gel toward the law enforcement officers positioned at the base
of the steps. Id. at 10-11. The moment was captured by a photographer and submitted in the
government's filings. Id.
Around 2:00 P.M., the mob forced its way past officers and into the Capitol building. Id
As they did so, they broke windows and assaulted members of the Capitol Police. Id When the
mob broke into the building, Congressional membe{·s and then-Vice President Pence were forced
to evacuate. Id.
Although defendant was not one of the rioters who breached the Capitol building,
defendant was part of the mob that, during the time officers struggled to keep the crowd from
advancing between 1:00 and 2:00 P.M., engaged in attacks on the Capitol Police. Id.
Defendant is an avowed member of the Proud Boys organization. Id. at 3-4. He was
arrested wearing a shirt with the words "Proud Boys" emblazoned on it, and law enforcement
located in his house numerous shirts, patches, and challenge coins featuring the Proud Boys colors,
logos, insignia; or specific Proud Boys chapters. Id. at 4. The govemmcnt also proffered pictures
and videos showing defendant wearing Proud Boys apparel or colors. Id.
According to defendant's live-in girlfriend, on January 6, 2021, she and defendant traveled
to Washington D.C. with other Proud Boys in vans paid for by another individual. Id. at 8. They
stayed in hotel rooms paid for by another individual. Id. Defendant and other Proud Boys used
radio-communication devices on January 6, and he marched to the Capitol wearing tactical gear,
prepared for confrontation. Id.
3
B. Defendant's Conduct After the Capitol Hiot and Subsequent Arrest
On January 18, 2021 the FBI conducted a voluntary interview with defendant. ECF No. 9
at 12. A tip uotificd the FBI that defendant had posted a video on his Facebook page showing him
at the Capitol issuing commands to other rioters. Id. at 12. 1 In his interview, defendant admitted
that he was at the Capitol, but denied any wrongdoing and specifically denied entering the Capitol
building. id.
On March 12, 2021, the FBI went to defendant's residence to arrest him incident to the
execution of a search warrant. Id. at 13. But defendant was away camping. Id Over the phone,
an FBI agent instructed defendant 10 turn himself in to the nearest FBI field office in Sarasota,
Florida. Id Defendant refused and stated that he would turn himself in at his residence, which
was several hours away. Id For public-safety reasons, the FBI declined to force defendant to turn
himself in at Sarasota. Id
While defendan1 was being arrested at his residence, he told law enforcement that he knew
who alerted the FBI to his activities, offering a particular individual's name. Id He also mentioned
that he was upse1 at a particular Twitter user who had exposed his identity online. Id Defendant
said something to the effect of, if he ever found that person, the FBI would "be corning for [him]
again." Id.
I~ its most recent filing, the government proffered several more of defendant's statements
from his Faccbook page. For example, on January 18, 2021 (the day defendant was interviewed
by the FBI) he told one Facebook user:
Worrell: Gola visit from FBI an hour ago
Worrell: I just put a troll post out .Believe I know who ratted
1 The government explains that it has thus far been unable to obtain this video.
4
User: Feds have been going over every vid with a fine tooth comb
though. They may have just ID'd yt u from public vids
Worrell: . ... We shall sec
Got a plan
User: Forget him for now, he's inelevant. ...
Worrell: I am 99.9 I know who called.
ECF No. 60-2 at 12. In a public post that same day, he ,:i.1rote, "SO WHOMEVER [sic] CALLED
THE 'FEDS' ON ME REST ASSURED I KNOW WHO YOU ARE AND WE WILL BE
DISCUSSING THIS SOON!! The best part is you have NOTHING accept [sic] empty
accusations!! You are the piece of shit I knew you were!!" Id. He then responded to several
comments concerning this person, noting in one, "It's a simple case of a butt hurt pu"'*y ass bitch
that thought they could F**k with someone with some dumb bullshit!! They are about to get
educated in 'real life."' Id.
C. Procedural History
l. Chief J udgc Howell's Order Of Detention
On March 19, Chief Judge Howell issued an order detaining defendant pending trial. ECF
No. 13. Chief Judge Howell first found that the government could seek pretrial detention because
defendant's charged conduct involved a felony and the use of a dangerous weapon. ECF No. 27
at 62, see 18 U.S.C. § 3142(1)(1 )(E). Chief Judge Howell then found that each of the factors in 18
U.S.C. § 3142(g) supported defendant's detention. She concluded that clear and convincing
evidence demonstrated that no condition or combination of conditions of release would reasonably
assure the safety of others and the community. ECF No. 13 at 2. Her analysis is briefly
summarized in the following discussion.
First, Chief Judge Howell found that the nature and circumstances of the offense weighed
"heavily" in favor of detention. Id. at 5. Defendant was charged with four felonies stemming from
the Capitol Riot, in which his participation was "planned, calculated, and intentional." Id.
5
Defendant assembled with other Proud Boys and was equipped with a tactical vest, pepper spray,
and a radio-communications device. Id. And at the Capitol, "[d]efendant discharged pepper spray
gel directed at a thin police line keeping the rioters from entering the Capitol via the West Plaza."
Id. Second, the weight of the evidence-which includes photos and videos clips of defendant at
the Capitol-weighed strongly in favor detention. Id. at 6. Third, defendant's history and
characteristics also weighed in favor of detention. Id. at 6-7. Here, defendant was previously
arrested for impersonating a police officer, which involved "intimidating conduct towards a total
stranger in service of taking the law into his own hands." Id at 7. Defendant's initial refusal to
turn himself in, and his statements during his arrest concerning others who exposed or reported
him to the J7BI, also "raise[ d] serious and troubling signals about defendant's willingness ... to
not intimidate or threaten any potential witnesses." Id. at 7. Finally, all of these circumstances
"taken together amplify concern that defendant will not adhere to a court order and that no
condition or conditions will assure the safety of the community, potential witnesses, and, in
particular, those who aided the government in identifying defendant, if he were to be released."
Id. at 8.
2. Defendant's First Emergency Motion For Reconsideration
On March 26, 2021, defendant filed his first emergency motion for reconsideration, arguing
that he had not received adequate medical care for his non-Hodgkin's lymphoma and that his
underlying conditions placed him at risk of contracting a severe COVID-19 infection. ECF No.
16-1 at 8 .2 On the issue of medical care specifically, he argued that his requests for two prescribed
2 Defendant also reargued that the four factors in § 3142(g) did not support his detention in light of the
Circuit's decision in United States v. Munchel, 991 F.3d 1273 (D.C. Cir. 2021 ). ECF No. 16-1 at 8-12. As
reflected by the transcript, Chief Judge Howell rejected those arguments. ECF No. 41 al 41 ("[T]he
defendant clearly disagrees with the Court's conclusions from-111y consideration of those factors that are
required to be considered; but there is nothing that the Court has heard that persuades me tha1 there was an
error in the consideration of those factors even post Munchel.").
6
cancer medications had been denied and that he had been deprived of an opportunity to be seen by
his physician, Dr. Bino Rucker. See ECF No. 16-1 at 3.
The government opposed these claims and made detailed proffers in its opposition and at
a hearing on the emergency motion on April 9, 2021. Regarding defendant's requests for
medication, the government explained that defendant's prescription for one medication-a topical
compound cream-expired prior to his arrest. ECF No. 29 at 11. As of April J, 2021, Dr, Rucker
"was unable to provide the dosage level for the cream or instructions for the pharmacy on how to
compound the cream," id. at 12, and he could not provide medical records related to the
prescription, id. at 14. Dr. Rucker explained that he could not do so because he has no medical
staff, keeps no medical rec·ords, and that he provides a "concierge" holistic or nontraditional
medical service. Id. at 13-14. Additionally, defendant refused permission from the Charlotte
County Jail's staff to have his girlfriend transport his leftover cream from home, ECF No. 29 at
14. Chief Judge Howell found that defendant's issues with obtaining the cream appeared to stem
from his own "lack of cooperation," and that defendant's characterization of medical need was
belied by his refusal to ask his girlfriend to bring the remaining cream and his failure to keep his
prescription up to date. Id at 40; see id. at 17.
As to the second prescription for naltrexone hydrochloride, the government explained thal
the medical staff at the Charlotte County Jail were unaware of any use for naltrexone as a cancer
treatment. Id. at 15. Dr. Rucker contended that he prescribed it for "off-label use." Id. at 16. But
here too, the medical staff at the jail were unable to obtain any additional medical records with
respect to that prescription because Dr. Rucker did not keep them. Id. Defense counsel
nevertheless argued that naltrexone was necessary for "pain management." Id. at 18.
7
Chief Judge Howell rejected defendant's arguments. She first noted that, "to say the least,
Dr. Rucker's assistance in this matter hasn't been as fulsome as one would hope whether
Mr. Worrell was incarcerated or not. And this medication presumably was not so significant that
he kept his prescription up to date." Id. at 17. Chief Judge Howell also found:
[T]he government's opposition and detailed proffer [] about
conversations and medications between the jail facility where the
defendant was held and the efforts by and to get his treating
physician to step forward and communicate as to the authorizations
for that medication is very illuminating, in terms of this doctor not
being able to provide records ... admitting he was using an ... off-
label usage of one of the medications; didn't seem particularly
cooperative with the medical facility where the defendant was
held ... that he doesn't have the records and he can't provide the
compound, and it was just-appears to have been really a lack of
cooperation. In addition, the defendant could have had his girlfriend
or partner bring the medication but he didn't want to bother her with
that.
Id at 39--40. In any event, Chief Judge Howell concluded that defendant would be able to receive
any necessary medication and care when he arrived at the D.C. Jail. Id. at 19, 41, 45 ("The D.C.
Jail has very adequate medical intake.").
The Circuit affirmed Chie~ Judge Howell's ruling. Worrell, 2021 WL 2010795, at* 1. The
Circuit first concluded that defendant did not adequately preserve his challenge to Chief Judge
Howell's finding that the pepper-spray gel he used was a dangerous weapon. Id Nor could
defendant show that the Chief Judge's conclusion was plain error. Id. Next, the Circuit affirmed
the Chief Judge's dangerousness determination, which was not clearly erroneous. Id. Defendant
"'actually assaulted police officers' with pepper spray gel." Id. (quoting Munchel, 991 F.Jd at
1284). And the dangerousness determination was "further buttressed" by defendant's "threats
against others-including potential witnesses," and his "membership in and alleged coordination
with the Proud Boys, some of whose members have been indicted for conspiring to attack
8
Congress." Id While defendant's appeal was pending, and prior to his arrival at the D.C. Jail, he
contracted CO V lD-19. Id at 2. To the extent that defendant argued that his CO VID-19 diagnosis
warranted pretrial release, the Circuit instructed this Court to consider that argument in the first
instance on remand . Id
3. The Filing Under Review: Defendant's Second Emergency Motion For
Reconsideration
On May 11, defendant filed the present motion for reconsideration. ECF No. 47. By the
time he filed the motion, he had recovered from COVID-19. But he describes his experience with
COVID-19 as "severe" and alleges that it caused him intense "psychological and emotional
distress." ECF No. 47-1 at 7. He argues that he has been denied access lo medical treatment and
his prescribed cancer medications (the cream and nahrexone), and that he remains at risk of severe
reinfection from COVID-19. Id. at 4, 6--7. In support, he provides affidavits from Dr. Rucker,
who states that he is the "treating oncologist" for defendant. ECF No. 47-4 at 1. 3 Dr. Ruckcr's
submissions note that while he has not seen defendant since before his ancst on March 12, 2021,
ECF No. 64- 1 at 2, it is his opinion that both prescriptions are medically necessary, that defendant
is at increased risk of rccontracting COVID-19, and that defendant should be released from
detention because confinement aggravates defendant's non-Hodgkin's lymphoma, id. at 2---3; ECF
No. 47-4 at 1- 2.
The government opposes the motion for reconsideration. ECF No. 49 . In its opposition,
foctual proffers in the hearing on this motion, and its supplemental brief and exhibits filed in
3
Notably, counsel chose to attach to the present motion the same March 24 "affidavit" from Dr. Rucker
included in the initial emergency motion for reconsideration. See ECF No. 47-4 . It is not clear that this
filing is indeed an affidavit because it does not sfate that it is under penalty ofpe1:jury. See 28 U.S.C. § 1746.
In any event, the affidavit provides no information about defendant's risks of reinfection after recovery
from the disease. See id. Only after the government filed its opposition and a supplemen1al brief did
defendant provide an updated affidavit for Dr. Rucker. ECF No. 64-1. ll is not clear why this affidavit was
not submitted with the defendant's motion in the first instance. See i11fi·a n.7.
9
response to this Court's Order, ECF No. 50, the government has provided extensive information
about defendant's medical history and care while in custody. The Court has reviewed these
submissions in full, and it briefly summarizes the information here.
Defendant was diagnosed with COVlD-19 upon his arrival at the O.C. Jail, but he is no
longer exhibiting symptoms or testing positive. ECF No. 49 at 5. Unity Healthcare (the D.C.
Jail's contracted healthcare provider) disputed defendant's allegation that his lymphoma condition
is "rapidly deteriorating" and reported no significant change in defendant's examination since his
arrival at the D.C. Jail. Id at 5-6. Six days after his arrival, he was scheduled for an appointment
with an oncologist. ECF No. 60-3 at 4. Defendant's medical records show that in August 2020,
his treating oncologist at the Moffitt Cancer Center (i.e., not Dr. Rucker) recommended an
alternative chemotherapy regimen as a substitute for the drug rituximab (to which defendant had
an allergic reaction), as well as a repeat PET scan and bone-marrow biopsy. ECF No. 60-2 at 2;
ECF No. 60-3 at 58. Defendant declined this treatment plan, did not follow up with the oncologist,
and apparently did not see any oncologist between August 2020 and his arrest. See, e.g., ECF No.
60-3 at 58. In February 2021, he visited Dr. Rucker--a urologist who practices alternative
medicine for cancer patients-on a single occasion and received prescriptions for the two
medications that he seeks in his motion for reconsideration. id. While at the D.C. Jail, he has met
with multiple doctors in the chronic-care facility. Id. at 47-48. They determined that his requested
medications arc outside the standard of care, have questionable support in the scientific literature,
and that his condition would be best managed by an oncologist, not a urologist. Id. So they
declined to prescribe the defendant's requested medications. Id.
10
On May 19, 2021, defendant visited Dr. - Ali, an oncologist at Howard University
Hospital. ECF No. 60-4. 4 Dr. Ali reported with respect to defendant:
Cutaneous B cell lymphoma: ... He needs Dermatology evaluation
for a repeat skin Biopsy to assess the sample with molecular studies,
PET scan for interim staging. He will need to be treated given
symptoms-pruritis, [treatment] likely will be
Gazyva/Bcndamustine he will need bone biopsy and port placed. He
understood and agreed with the plan, followed by maintenance.
[History of] Head and neck ca, currently on remission, no sign or
symptoms suggestive ofrecurrence. RIC after skin Biopsy and PET
scan.
Id. at 5. The report also notes that defendant had "no lymphadenopathy" and "no skin lesions,"
although defendant had reported skin Jcsjons. Id at 3-4. This discrepancy is not addressed
explicitly in the report. Id. Dr. Ali did not prescribe defendant's requested medications. A follow-
up appointment was scheduled with the chronic-care clinic at the D.C. Jail, and the D.C. Jail
medical staff have received written referrals for the recommended procedures. See ECF No. 60-3
at 4.
The government also provided evidence disputing defendant's characterization of his
COVID-19 infection as severe and detailing defendant's treatment for, among other things,
COVID-19, a cyst he had on his back, and a broken hand. See, e.g., ECF No. 60-3 at 6-7, 17-18,
21,101, 104, 108-14.
Defendant replied to the government's supplement. ECF No. 64. In his reply, defendant
criticizes the government's characterization of Dr. Rucker and his medical care. ECF No. 64 at l.
4
Defense counsel asserts that the government failed to "even name the Howard oncologists, the
Government [employees], or Unity employees who apparently dispute Dr. Rucker's prescriptions." ECF
No. 64 at 3. That is false. Defendant's treating oncologist-Dr. - Ali-has his name appear in the
government's exhibits. S'ee ECF No. 60-4. (Defense counsel acknowledges Dr. Ali's identity on the next
page of the same filing.) The names of the two physicians at the chronic-care facility are also specifically
mentioned in the government's filings. ECF No. 60-3 at 48-49 (Doctors Mitchell and a=;:r::.a......,,..
Crenshaw).
11
He also argues that the government has been deliberately indifferent to his medical needs and has
violated his due process rights. See id. at 11.
On June 1, 2021, defendant then filed a "supplement" to his reply alleging that he suffered
a period of unconsciousness and fell to the floor on May 30, 2021. ECF No. 66 at 1. He states
that he was put on a stretcher and brought to the medical unit. Id. lie remembers being asked
questions, but cannot remember them or how he answered. Id. He now represents that he "has a
large hematoma from where he landed on his head." Id. And he states that "to the best of his
memory, he was given two over the counter painkillers and sent back to his cell," rather than taken
to the hospital. Id. He claims that D.C. Jail personnel did not examine him further or provide him
with a CT scan. Id. And he argues, in addition to his earlier criticisms of his medical care, that
this incident alone constitutes "deliberate indifference." Id
Defendant's motion is now ripe for consideration.
II. LEGAL STANDARDS
A. Pretrial Detention Under the Bail Reform Act
The Bail Reform Act, 18 lJ. S. C. § 3141 et seq., authorizes the detention of a defendant
awaiting trial on a federal offense only under certain, limited circumstances. 18 U.S.C. § 3 l 42(f).
First, the government may seek a defendant's pretrial detention if the charged offenses fall into
any of five enumerated categories. § 3 l 42(f)(I). Those categories include:
12
(A) a crime of violence,5 a violation of section 1591, or an offense
listed in section 2332b(g)(5)(B) 6 for which a maximum term of
imprisonment of IO years or more is prescribed,
(B) an offense for which the maximum sentence is life imprisonment
or death,
(C) an offense for which a maximum term of imprisonment of ten
years o_r more is prescribed in the Controlled Substances Act ... the
Controlled Substances Import and Export Act. , , or
[46 U.S.C. § 705],
(D) any felony if [the person charged] has been convicted of two or
more offenses described in[§§ 3142(f)(l)(A)~(C)] if a circumstance
giving rise to federal jurisdiction had existed, or a combination of
such offenses, or
(E) any felony that is not otherwise a crime of violence that involves
-a minor victim or that involves the possession or use of a firearm or
destructive device ... or any other dangerous weapon[.]
§ 3142(t)(l)(A)--(E).
Second, the government may also seek detcntion--0r the court sua sponte may hold a
detention hearing to determine whether pretrial detention is appropriate---whcn the case involves
"a serious risk" that the defendant will flee or "will attempt to obstruct justice, or threaten, injure,
or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror."
~ 3142(t)(2).
If the Bail Reform Act authorizes pretrial detention, the judicial officer must hold a hearing
to determine whether there are conditions of release that would reasonably assure the appearance
~ The Bail Reform Act defines "crime of violence" as (A) "an offense that has as an clement of the offense
the use, attempted use, or threatened use of physical force against the person or property of another,"
(R) "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing the offense," or (C) "any
felony under chapter 77, 109A, 110, or 117." 18 U.S.C. § 3156(a)(4).
6
Section 2332b(g)(5)(B) lists offenses that become a "federal crime of terrorism" when the offense is
"calculalcd to i11Jluc111,;c or <1ffcet !lie conduct of government by i11timidatio11 or coercion, or to retaliate
against gove111111e11t conduct." 18 U.S.C. § 2332b(g)(5)(B).
13
of the defendant as required and the safety of any other person and the community. § 3142(:t). If
the judicial officer finds 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 communityi"
the judicial officer "shall order" the person detained pending trial. § 3142( e)(l) (emphasis added).
A finding that no condition or combination of conditions would reasonably assure the safety of
any other person and the community must be supported by clear and convincing evidence.
§ 3142(f). And a finding that no conditions would reasonably assure the defendant's appearance
as required must be supported by a preponderance of the evidence. United States v. Xulam,
84 F.3d 441, 442 (D.C. Cir. 1996).
Under some circumstances that are not present here, the Bail Reform Act may establish a
rebuttable presumption of detention. See § 3142(e). But where, as here, the presumption is not
implicated, the court instead must consider the following factors to determine whether there are
conditions that would reasonably assure the defendant's appearance and the public's safety:
(1) the nature and circumstances of the offense charged, including
whether the offense is a crime of violence, a violation of Section
1591, a Federal crime of terrorism, or involves a minor victim or a
controlled substance, firearm, explosive, or destructive device
(2) the weight of the evidence against the person
(3) the history and characteristics of the person, including-
(A) the person's characteri physicaJ and mental condition,
family 1ies, employment, financial resources, length of
residence in the community, community tics, past conduct,
history relating to drug or alcohol abuse, criminal history,
and record concerning appearance at court proceedings
(B) whether, at the time of the current offense of arrest, the
person was on probation, on parole, or on other release
pending trial, sentencing, appeal, or completion of sentence
for an offense under Federal, state, or local law; and
14
(4) the nature and seriousness of the danger to any person or the
community that would be posed by the person's release.
§ 3142(g).
B. Reopening a Detention Hearing Under Section 3142(t)(2)
Important here, § 3142(f)(2) provides that a hearing "may be reopened, before or after a
determination by the judicial officer, at any time before trial if the judicial officer finds that
infomiation 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."
§ 3142(f)(2). The statute does not define the term "material bearing," so the Court looks to the
ordinary meaning of those words. Here, there may be some surface ambiguity about the phrase's
precise connotation. One possible view is that it refers to information that merely relates in some
way to a detention determination. But another view is that it refers specifically to information that,
if true, would affect the validity or propriety of detention itself. See Material, 131uck~__l_,FtW
I)ictionnr , (10th ed. 2014) (listing definitions for "material" as either "having some logical
connection with the consequential facts" or, alternatively, "of such a nature that knowledge of the
item would affect a person's decision-making; significant, essential"). If the phrase means the
former, then defendants may reopen detention hearings by introducing new information merely
with some sort of connection to their detention. But if it means the latter, the defendant must
introduce new information that's not only logically connected to dctcntio:n, but that might also
significantly affect the decision whether to detain the defendant.
The problem with the former, "mere logical connection" view is that it necessarily treats
some of the statutory language as surplusage. Cf Qi-Zhuo v. Meissner, 70 P.3d 136, 139 (D.C.
Cir. 1995) ("[A]ll words in a statute are to be assigned meaning[.]"). If Congress wanted to convey
15
that defendants could reopen detention hearings with information merely related or connected to
detention, it could have simply used the word "bearing," since "bearing" already connotes a
connection or relationship. See Webster's New International Dictionary 192 (3d ed. 1965)
(likening the term "bearing" to a "relation" or "connection"). Instead, Congress went further. It
stipulated that the new information must have not only a "bearing" on-that is, a logical connection
to-detention, but that it must have a "material bearing" on detention. § 3142(f). So "material"
here must mean something more than a mere "logical connection," since "bearing" already
conveys precisely the same semantic content. In other words, it must refer to materiality in its
second sense-the sort of information essential to, or capable of significantly affecting, the
detention decision. Only this latter reading gives full effect to both words in the term "material
bearing." Thus, in addition to "bearing" on-having a logical relation to-328 F.3d 610, 614 (10th Cir. 2003) ("[R]econsideration is permissible under this
section only when there is new infonnation that would materially influence the judgment about
whether there are conditions of release which will reasonably assure that the defendant will not
flee and will not harm any other person or the community.'').
C. Temporary Release Under Section 3142(i)
In addition to permitting the reopening of a detention hearing under§ 3142(£)(2), the Bail
Reform Act also allows defendants ordered detained to move for temporary release under
18 U.S.C. § 3142(i). Section 3142 provides that aflera judicial officer enters an order of detention,
the officer "may by subsequent order, permit the temporary release of the [defendant], in the
custody of a United States marshal or another appropriate person, to the extent that the judicial
16
officer determines such release to be necessary for preparation of the person's defense or for
another compelling reason." 18 U.S.C. § 3142(i). Section 3142(i) "provides a distinct mcchan'ism
for temporarily releasing a detained defendant, in a manner that has nothing to do with a revisiting
of the initial detention determination." United States v. Lee, No. 19-cr-298, 2020 WL 1541049, at
*3 (D.D.C. Mar. 30, 2020). A defendant moving under§ 3 l 42(i) bears the burden of showing that
he is entitled to relie[ United States v. Riggins, 456 F. Supp. 3d 138, 149 (D.D.C. 2020),
Before the COVID-19 pandemic, few courts had considered what amounts to "another
compelling reason" necessitating release, as motions brought under § 3 l 42(i) typically sought
temporary release for the defendant's preparation of his defense. See, e.g., United States v. Lee,
451 F. Supp. 3d I, 6 (D.D.C. 2020) (collecting cases). More recently, however, courts have
confronted the argument that temporary release under § 3 I 42(i) is necessary due to the conditions
in detention facilities caused by the COVID-19 pandemic, See, e.g., id.; Riggins, 456 F. Supp. 3d
at 149; United States v. Otunyo, No . 18-CR-251 , 2020 WL 2065041, at *9 (D.D.C. Apr. 28, 2020);
United States v. Thomas, 456 F. Supp. 3d 69, 72 (D.D.C. 2020) ; United States v. Dhavale, No. l 9-
MJ-92, 2020 WL 1935544, at *5--6 (D.D.C. Apr. 21, 2020). And while some courts have granted
temporary release under § 3 l 42(i) when the defendant has serious underlying health conditions
that exacerbate the risk of severe illness or death from COVID-19, see, e.g., 1110mas, 456 F. Supp.
3d at 78-79, courts recognize that the existence ofCOVID-19 alone docs not present a "compelling
reason" necessitating temporary release, see, e.g., Dhavale, 2020 WL 1935544, at *5-6; Otunyo,
2020 WL 2065041, at *9.
D. Other Bases For Reconsideration
Defendant cites Federal Rule of Civil Procedure (F.R..C.P.) 59(c), which is not applicable
in criminal cases. But, as he correctly points out, "[a]lthough not expressly authorized by the
17
Federal Rules of Criminal Procedure, motions for reconsideration are allowed in criminal cases."
United States v. Jones, 916 F. Supp. 2d 83, 86 (D.D.C. 2013). "This is because courts should have
the opportunity 'to correct their own alleged errors."' Id. (quoting United States v. Dieter,
429 U.S. 6, 8 (1976)). For interlocutory pretrial-detention orders, courts in this district apply the
"as justice requires" standard ordinarily applied to motions under F.R.C.P. 54(b). See, e.g., United
States v. Hong Vo, 978 F. Supp. 2d 41, 47 (D.D.C. 2013).
Reconsideration may be warranted under this standard when, within the court's discretion,
the court has "patently misunderstood the parties, made a decision beyond the adversarial issues
presented, or made an error in failing to consider controlling decisions or data, or where a
controlling or significant change in the law has occurred." Id at 48 (quoting Arias v. DynCorp,
856 F. Supp. 2d 46, 52 (D.D.C. 2012)) (internal quotation marks and alterations in original
omitted). Beyond these circumstances, a motion for reconsideration should not be used as a
vehicle for relitigating issues on which the comt already ruled because the party disagrees. Id.(quoting Arias, 856 F. Supp, 2d at 52)
E. Due Process Clause
A pretrial detainee's claims of unconstitutional conditions of confinement are governed by
the Due Process Clause of the Fifth Amendment, rather than Cruel and Unusual Punishments
Clause of the Eighth Amendment. See Danzell v. Pineiro, 849 T'.3d 17, 29 (2d Cir. 2017). To
evaluate whether the conditions of pretrial detention violate the Fifth Amendment's Due Process
Clause, the Supreme Comi has stated that a court must determine whether the challenged condition
amounts lo "punishment." Bell v. Wo(fish, 441 U.S. 520, 535 (1979); see United States v.
Salerno, 481 U.S. 739, 746 (1987) (pretrial detention must be "regulatory, not penal").
Government actions taken with an "expressed intent to punish" clearly constitute punishment.
18
Bell, 441 U.S. at 538. When there is no "expressed intent to punish," the Court engages in a two-
step inquiry.
First, the detainee must show an objective deprivation of his constitutional righ1s. To do
so he must show "that the conditions, either alone or in combination, pose an unreasonable risk of
serious damage to his health." Darnell, 849 F.3d at 30 (quoting Walker v. Schult, 7 l 7 F.3d l l 9,
125 (2d Cir. 2013)). Second, the defendant must show that the official either "acted intentionally
to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk
that the condition posed to the pretrial detainee even though the defendant-official knew, or should
have known, that the condition posed an excessive risk to health or safety." Id at 35. 7 "A pretrial
detainee thus can prevail if she either introduces evidence of a subJectivc intent to punish or
demonstrates that a restriction is objectively unreasonable or excessive relative to the
Government's proffered justification." United States v. Moore, No. 18-CR-198,
2019 WL 2569659, at *2 (D.D.C. June 21, 2019) (citing Kingsley v. Hendrickson, 135 S. Ct. 2466,
2473 (2015)).
III. ANALYSIS
Defendant argues that reconsideration is warranted under two broad theories: (1) that he is
not receiving adequate treatment for his non-Hodgkin's lymphoma, and (2) that his underlying
conditions make him especially vulnerable to COVID-19. ECF No. 4 7-1 at 5. Invoking
§ 3142(f)(2) of the Bail Reform Act, and F.R.C.P. 59(e), defendant argues that both theories
involve changed circumstances that minimize the nature and seriousness of the danger posed by
his release. Elsewhere, defendant suggests that these theories may provide a "compelling reason"
7
The Second Circuit also refers to this as a claim for "deliberate indifference." Darnell, 849 F.Jd at 35.
19
for release, ECF No. 47-1 at 12-13, see § 3142(i); or amount to a violation of his due process
rights, ECF No. 64 at 5. Under any of these legal frameworks, however, defendant is wrong. 8
A. The Court Wil1 Not Reopen The Detention Hearing Under Section 3142(f) of the Bail
Reform Act
Section 3 l 42(f)(2) of the Bail Reform Act permits the Court to reopen a hearing for
information that "was not known to the movant at the time of the [detention] hearing and that has
a material bearing on the issue whether there are conditions of release that will reasonably
assure ... the safety of any other person and the community." Here, defendant invokes the fourth
factor found in § 3142(g)(4) and argues that his "severe and deteriorating medical condition
continues to develop such that his compliance with any release conditions is assured." ECF No.
47-1 at 16 (citing § 3142(g)(4)). Yet defendant does not explain how his non-Hodgkin's
lymphoma or recent developments pertaining to his condition and treatment have a "material
bearing" on the "nature and seriousness of the danger to any person or the community" that would
be posed if he were released. 9 § 1142(g)(4). That is not surprising, because defendant's non-
8
Two notes are warranted here. First, defendant invokes the Bail Reform Act's provision for release for a
compelling reason only as to the argument concerning his susceptibility to COYJD-19. See ECF No. 47-1
at 9. Second, in his reply to the government's supplemental brief, defendant for the first time argues that,
under the Fifth and Eighth Amendments to the U.S. Constitution, he should be released because the
government has been deliberately indifferent to his medical needs. ECF No. 64 at 11-13. The Comt need
not consider these argtiments . See Benton v. Laborers' Joint Training Fund, 12 l F. Supp. 3d 41, 51 (D.D.C.
2015) ("[l]t: is a well-settled prudential doctrine that courts generally will not entertain new arguments first
raised in a reply brief.") (quoting Lewis v. District of Columbia, 791 f. Supp. 2d 136, 140 n.4 (D.D.C.
2011)); United States v. Hunter, 786 F.3d 1006, IOI I (D.C. Cir. 2015) ("Jt is generally understood that
arguments first raised in a reply brief are untimely."). But as the analysis that follows demonstrates, whether
these arguments were adequately presented to the Court makes no difference to the Court's conclusion
today.
9
Throughout his filings, defendant argues that he docs not pose a flight risk. See, e.g., ECF No. 47-1 at 18 :
The initial detention order never stated that defendnnt was a flight risk. Instead, Chief Judge Howell
concluded by clear and convincing evidence that no condition or combination of conditions ofrelease would
reasonably assure the safety of others and the community. ECF No. 13 at 2.
20
Hodgkin's lymphoma is neither essential to nor would significantly affect the inquiry under the
Bail Reform Act.
Defendant's vulnerability to COVID-19 is also not infm111ation unknown "to the movant
at the time of the [detention] hearing" or having "a material bearing" on the Bail Reform Act's
analysis. Neither the presence of the pandemic nor defendant's awareness of his vulnerability to
COVID-19 are developments arising after the detention hearing or his previous motion for
reconsideration. And to the extent that defendant argues his previous COVID-19 infection and
fear of reinfection arc new information, the Court disagrees that that these have a "material
bearing" on the Bail Reform Act analysis.
The factors on which Chief Judge Howell relied when she issued an order to detain
defendant, and when she rejected his first emergency motion for reconsideration, remain the same.
Defendant is charged with serious felonies. He is alleged to have threatened and assaulted police
officers with a strong pepper-spray gel. The government has strong evidence in this case, including
photos and video clips of defendant and his actions at the Capitol. Defendant's actions demonstrate
his prior planning and coordination with the Proud Boys, some of whose members have been
indicted for conspiring to attack Congress. Defendant has a criminal history. And he made several
statements at the time of his arrest that the FBI would have to come for him again if he found out
who exposed his identity online. Faced with these findings, defendant does not explain how his
COVID-19 concerns make him less dangerous. Even accepting that the defendant may have new
reasons to fear COVID-19 or to avoid detention at the D.C. Jail after his COVID-19 diagnosis,
these concerns are surely diminished when his risk of reinfection is low, he has access to COVlD-
19 treatments and the vaccine, and the D.C . .Tail has low rates of transmission. See infra JII.B.ii.
21
Thus, defendant's COVID-19 concerns arc neither essential to nor would significantly affect the
detention decision.
Defendant also argues that "[t]hc four factors [in the Bail Reform Act] together with
considerations ofCOVID-19 justify pretrial release." ECF No. 47-1 at 15. But he concedes that
"the weight of the four factors has already been expressed" in his first emergency motion for
reconsideration. Chief Judge Howell considered and rejected the arguments he previously raised,
ECF No. 29 at 43, finding that the four factors "weigh[ed] heavily in favor of pretrial detention,"
id at 70. The Circuit affomed Judge Howell's determination. See Worrell, No. 21-3020 (D.C.
Cir. May 5, 2021 ). This Court sees no reason to reconsider defendant's previously-rejected
arguments and defendant has provided none. See United Slates v. Dermen, 779 F. App'x 497, 502
(10th Cir. 2019) (holding that where the defendant "did not present new information to warrant
reopening the detention hearing, we find no error in the district court's conclusion that he was not
entitled to a detention review under § 3142([)(2)"). The Court will not reopen defendant's
detention hearing under § 3 l 42(f)(2).
B. Defendant Has Not Identified Compelling Circumstances For Release Under Section
3142(i) of.the Bail Reform Act
1. Defendant's Challenges To His Medical Care Arc Without Merit
Defendant has characterized his medical treatment as, among other things, "inadequate,
dangerous, and life-threatening" and "tantamount to punishment." ECF No. 57 at 8. At one point,
counsel for defendant even endorsed a statement that defendant is being "subject to a form of
torture." ECF No. 58 at 8- -9. These representations have no basis in reality.
Contrary to defendant's characterizations, the record reflects that he has received attentive
medical care for his non-Hodgkin's lymphoma, COVID-19, and other ailments while in tustody.
Within six days of his arrival at the D.C. Jail--while defendant was under quarantine after testing
22
positive for COVID-19-he was scheduled for a refen-al with an outside oncologist at Howard
University Hospital for his lymphoma. 10 ECF No. 60-3 at 4. When de Cendant was diagnosed with
COVID-19, he received approximately two temperature checks daily, and he was sent to the
emergency room upon his repo1iing chest congestion and pain. -ECF No. 60-3 at 105-06. Imaging
showed no pneumonia, and from the next day through the remainder of his treatment, defendant
denied having problems, concerns, or symptoms of COVID-19. 11 See, e.g., id. at 101. Days after
defendant completed his quarantine, ECF No. 60-3 at 48, 66, defendant met with doctors at the
Jail's chronic-care facility regarding his lymphoma. Additionally, on May 19, 2021, he met with
the outside oncologist. ECF No. 60-4 at 2-5. He has a follow-up appointment scheduled with the
d1ronic-care clinic at the Jail, and the Jail's medical staff have written him referrals for the
procedures recommend by the outside oncologist. ECF No. 60-3 at 4. Defendant's medical
10
These medical records refute the argument that his oncologist appointment was made only in response lo
the motion under consideration here. See ECF No. 60-3 at 4, 58.
11 Defendant and the government paint dramatically different pictures of defendant's COVID-19 infection.
Compare ECF No. 47-1 at 3 (describing "severe" body aches, weakness, muscle fatigue, and chest
congestion, as well as fever, cough, headache, sweats, and chills), with ECF No. 60-3 at 83 (staff description
describing his case as "mild"), and 108-14 (defendant denying symptoms of, and not having any signs of,
COVID- l 9). The Cou1t is skeptical of defendant's characterization in his motion in light of the medical
records showing minor symptoms and his statements denying having any problems related to COVJD-19.
Nevertheless, this factual dispute is hardly relevant to the outcome here. Despite his characterization of his
experience, defendant nowhere argues that he received inadequate medical care for COVID-19. Defendant
notes that continued medical monitoring may be required for immunocompromised individuals diagnosed
with COVID-19 because of the possibility that they may suffer from other medical symptoms that endure
long after the individual is testing positive. ECF No. 4 7-1 at 4. Again, nowhere does defendant argue that
he is not receiving continued medical care from the D.C. Jail (besides his complaints about his prescriptions
and oncologist access). Instead, the undisputed facts show that defendant has continued to be seen by the
healthcare providers for his conditions as part of his treatment plan and when he affirmatively requests
medical care.
Defendant does dispute the Court's earlier statements about the chances of contracting COVID-19 and that
he may recontract COVID-19 and suffer serious symptoms. Id. at 3-4. The Court addresses those specific
contentions in the next section. But notably, defendant did not contract COVID-19 at the D.C. Jail-he
tested positive when he arrived. id. at 2 (acknowledging that he contracted COVID-19 prior to arriving at
the D.C. Jail). To the extent that defendant's argument suggests that his contracting COVID-19 is indicative
of the healthcare he has received at the Jail, the Cou1t r~jects that suggestion.
23
records also show that he has received treatment for a cyst on his back and after he broke his hand.
Id at 3~, 21. Defendant has been seen by the D.C. Jail medical staff dozens of times and his
medical records reflect an average of several updates per day. See ECF No. 60-3.
At bottom, the government has 1iot denied defendant medical treatment for his lymphoma
or any other medical need arising during detention. And considered within this context,
defendant's specific arguments about his lymphoma care fall short. Defendant first argues in his
motion that he lacks access to an oncologist. ECF No. 47-1 at 9. That is incorrect. Defendant had
an appointment with an oncologist on May 19 and has follow up appointments currently scheduled.
See, e.g., ECF No. 60-4 al 3-5. Defendant is currently under the care of an oncologist who has
devised a treatment plan that includes testing and is being implemented by the D.C. Jail. See ECF
No. 60-2 at 4.
Defendant next blames the government for the length of time before he was able to see an
oncologist. See, e.g., ECF No. 64 at 11 ("The failure of the Government and the DC Jail to provide
Mr. Worre11 with adequate medical care for his non-Hodgkin's lymphoma over a period over [sic]
seventy-five days constitutes deliberate indifference."). But here too, the government provides a
reasonable explanation for any delays in care after arrival at the D.C. Jail. After being diagnosed
with COVID-19, defendant was kept in isolation and was unable to see an outside oncologist until
May 2021. Further delays in seeing an oncologist stemmed from the difficulty faced by the
government in compiling defendant's medical history from multiple previous healthcare providers.
See, e.g., ECF No. 29 at 43~4; ECF No. 57 at 13-14. Defendant does not seriously dispute the
legitimacy-of either justification. Nevertheless, the government took the initiative of scheduling
an oncologist appointment while defendant was. isolated. ECF No. 60-3 at 4. And within days of
completing his quarantine, defendant met with doctors at the Jail's chronic-care facility to discuss
24
his lymphoma. ECF No. 60-3 at 48, 65. Defendant has not been deprived of medical care for his
lymphoma over the entire period at issue.
Defendant's complaint that the government has failed to provide him with two prescription
medications fares no better. Summarized briefly, defendant attacks (1) the length of time that will
pass before the government will provide medication for his lymphoma, (2) the conclusions of the
treating professionals at the Jail who declined to issue his requested prescriptions, and (3) the
government's criticisms of Dr. Rucker. See, e.g., ECF No. 64 at 8--14. At bottom, defendant's
arguments obscure the relevant inquiry-whether defendant's medical condition or healthcare
treatment affect the legal analysis for pretrial detention. They do not.
Facts first. As Chief Judge Howell found, and the Circuit affirmed, any initial delays
relating to defendant's requests for medication were neither the fault of the government nor a valid
basis for release. See ECF No. 29 at 39-40. One of defendant's prescriptions had expired, he
declined to have his girlfriend bring him his remaining compound cream from home, and the
government had difficulty contacting and receiving the relevant medical records for the
prescriptions from Dr. Rucker. Id. And as explained above, the government has reasonably
explained any subsequent delays in defendant's treatment plan for lymphoma while also
demonstrating that defendant has had access to healthcare for his condition at the D.C. Jail. See
supra pp. 22 24. Defendant is now under the care of the physicians at the D.C. Jail and the Howard
University Oncologisl, Dr. Ali. ECF No. 60-4. Prior to being treated by Dr. Rucker in February
of this year, defendant had not seen an oncologist since August 2020. ECF No. 60-3 at 59. The
physicians at the D.C. Jail-which include a specialist-have recommended a treatment plan
involving further testing, and they have declined to prescribe the medication that Dr. Rucker chose
and that defendant requests. Though defendant faults the government for failing to prestribe
25
something to help manage his symptoms, the government has provided reasonable explanations
for the current treating plan and the physicians' disagreement with Dr. Rucker. See id. at 47-48
(expressing concern that "without any imaging, the patient may have more advanced disease" and
explaining that defendant's requested medications are "not the standard of care," lack "any
evidence," and that defendant's care would be best "managed by an oncologist"); see also ECF
No. 60-4 (oncologist report recommending a different treatment plan).
To the extent defendant argues that his condition and healthcare treatment require release
as a "compelling reason" under § 3142(i\ the Court does not agree. Defendant's medical
records-which include the conclusions of his treating physicians at the Jail-confirm that the
government has not deprived defendant of adequate medical care for his non-Hodgkin'' s
lymphoma. The justifications provided by the government are objectively reasonable on their face
and are "rationally related" to defendant's healthcare plan. See Kingsley, 13 S. Ct. at 24 73. This
is not a case where the government wrongfully interfered with a treatment once prescribed. See
ECF No. 64 at 8 (citing Estelle v. Gamble, 429 U.S. 97, 104--05 (1976)). Instead, the government's
doctors reached a different conclusion about what treatment was necessary for defendanf s
condition. Indeed, "[i]t is well established that mere disagreement over the proper treatment does
not create a constitutional claim." Banh v. York, 515 F. Supp. 2d 89, 103 (D.D.C. 2007) (quoting
Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)). Nor docs it create a "compelling reason"
for release under the circumstances presented here. § 3142(i). Because defendant has access to
adequate care, neither his disagreement with the treating physicians concerning his medication nor
26
his desire to have access to a different doctor provide an adequate legal basis for reconsideration
of his detention. 12
2. Defendant's Susceptibility To Recontracting COVID-19
Defendant next contends that "his particular vulnerability to COVID-19 nol only rebuts the
statutory presumption in favor of dangerousness ... but also tilts the balance in favor of release.
ECF No. 47-1 at 40. He argues that his particular vulnerability may "outweigh the traditional
Section 3 l 42(g) factors," id. at 16, or constitute a "compelling reason" for release, id. at 13. The
Court is not persuaded.
Defendant has previously made----and lost---several of the arguments he presents pertaining
to COVID-19. Compare ECF No. 16~1 at 17-18, with ECFNo. 49 at 12-14. Notably, he attached
the same affidavit from Dr. Rucker to both motions for reconsideration. Compare ECF No. 16-4,
with ECF No. 47-4. And only in his reply brief does he attach a new affidavit from Dr. Rucker
that states, without further explanation, that defendant is at an "increased risk of recontacting
COVID-19," ECFNo. 64-1 at 3.
Defendant's risk of infection now is less than when he initially contracted COVID-19 and
for that matter, when Chief Judge Ho,vcll rejected his argument that his susceptibility to the disease
justified release. The Centers for Disease Control and Prevention has concluded that "(c]ases of
reinfection with COVID-19 have been reported, but remain rare." Centers for Disease Control
and Prevention, Reinfection with COVID-19 (Updated Oct. 27, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/your-hcalth/reinfection.html. And as Chief Judge
Howell explained, the risk of COVID-19 infection at the D.C. Jail is low. ECF No. 29 at 18-19.
12 To the extent that defendant is independently requesting that the Court order the government to provide
his prescriptions or provide access to his choice health care provider, the Cou1i has not been provided any
authority as to why a motion for reconsideration of a detention order is the proper vehicle for that request.
27
That remains true. See ECF No. 57 at 17; D.C. Gov't, Public Safety Agency COVID-19 Case
Data, https://coronavirus.dc.gov/page/public-safety-agency-covid-: 19-case-data (last visited June
2, 2021). Moreover, the medical records presented by the government show that defendant not
only rejected a monoclonal antibody treatment made available to him at Georgetown University
Medical Center and refused to discuss his concerns with medical staff, ECF No. 60-3 at 96, he also
declined to receive the COVID-19 vaccine when offered, id. at 46. In light of the evidence showing
defendant at the Capitol without any so1i of face covering, defendant's current COVID-19
arguments are even less compelling now when he refuses the Jail's medical treatments and the
COVID-19 vaccine.
In conclusion, neither defendant's lymphoma nor bis treatment provide a compelling
reason for release under § 3 l 42(i).
C. Defendant's Additional Arguments For Reconsideration Are Without Merit
For the same reasons discussed above showing that defendant has not provided a valid
basis fo reopen the detention hearing under§ 3142(f)(2), see supra III.A, defendant's arguments
invoking F.R.C.P. 59 also fail. The Court is not persuaded that defendant's lymphoma and
COVID-19 wanant reconsideration under of the rationales where coutis in this District have
recognized that justice may require it. See Hong Vo, 978 F. Supp. 2d at 47-48. ·The Court will not
permit defendant to use his motion to reargue theories that were previously -rejected. See id.
Second, for the same reasons that defendant's lymphoma care and COVID-19 are not
compelling reasons justifying release under§ 3142(i), the Court is not persuaded that defendant's
due process rights have been violated. There are no facts showing that the government has acted
with an "expressed intent to punish'' defendant regarding his medical care. Bell, 441 U.S. at 538.
And because the government has provided defendant with adequate medical care, he cannot show
28
that the conditions "either alone or in combination, pose an unreasonable risk of serious damage
to his health." Darnell, 849 F.3d at 30 (quoting Walker, 717 F.3d 125). That is sufficient to resolve
the due process inquiry. Here, as discussed above, defendant has been seen by several doctors
who have agreed on a treatment plan that is currently being implemented by the D.C. Jail. Nor
has he been denied access to medical care while detained. To the extent that defendant wants a
different doctor and different treatment, the Comt is not persua~ed that the government's rejection
poses an objectively unreasonable risk of damage to defendant's health. Cf Banks, 515 F. Supp.
2d at 103. Similarly, defendant cannot show an objectively unreasonable risk to his health
concerning COVID-19 when cases at the D.C. Jail are low and he refuses the jail's treatments.
, D. Defendant's Eleventh-Hour Supplement To His Reply
Finally, the arguments in defendant's supplement to his reply do not warrant reopening the
detention hearing under § 3142(£). See ECF No. 66. Nor do they justify reconsideration under
Federal Rule of Civil Procedure 59(e) and its criminal analogues, amount to a "compelling reason"
under § 3 l 42(i), or rise to the level of a due process violation. See id. First, for the same reasons
that the Court concludes that defendant's condition, treatment, and COVID-19 have no "material
bearing" on the Bail Reform Act analysis~ here too the Court finds that the information contained
in defendant's supplement is not significant or essential to the inquiry whether "there are
conditions of release that will reasonably assure ... the safety of [others] and the community."
§ 3142(£)(2). For the same reason, the Court will not reconsider the § 3142(g) analysis under
F.R.C.P. 59(e) and the analogous principles previously invoked by defendant. The Court also
rejects defendant's argument that the information in the supplement constitutes a "compelling
reason" for release under § 3142(i) or a violation of defendant's due process rights. In fact,
defendant's filing undermines several of his previous arguments on these issues. In his
29
supplement, he admits that he was transported to the medical unit on a stretcher without requesting
assistance and, once there, was asked several questions by and seen by the staff in the Jail's medical
center. ECF No. 66 at 1. Even to the extent that defendant contends that he has memory issues
from the incident, he does not deny that he had access to treating healthcare professionals after he
fell. Instead, he (again) criticizes the treating professionals' decisions, specifically the failure to
bring him to the emergency room or to give him a CT scan. Id. Even accepting defendant's
allegations as true, the Court cannot conclude that the failure to take defendant to the emergency
room or provide a CT scan resulted in an unreasonable risk of serious damage to defendant's health
'
when neither was deemed necessary by the Jail's medical facility.
To summarize, defendant's arguments about his medical treatment, COVID-19, and his
recent fall have no "material bearing" on the Bail Reform Act analysis, do not warrant reopening
the detention hearing under § 3142(£)(2), do not support reconsideration under Federal Rule of
Civil Procedure 59( e) and its analogues, do not constitute a "compelling reason" for release under
§ 3142(i), and do not implicate a violation of defendant's due process rights.
IV. CONCLUSION
Based on the foregoing, the Court will DENY defendant's emergency motion for
reconsideration by separate Order.
Date: 4("f. (~
- - - -~ - -- - Royce C. Lamberth
United States District Judge
30