United States v. Wiggins ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 19-cr-258 (KBJ)
)
SEAN RAY WIGGINS, et al., )
)
)
Defendants. )
)
MEMORANDUM OPINION AND ORDER
With more than forty detainees in the D.C. Jail reportedly testing positive for the
new coronavirus, it is now regrettably clear that COVID -19 has struck the District of
Columbia’s Department of Corrections (“D.C. DOC”) with full force. 1 The obvious
increased risk of harm that the COVID-19 pandemic poses to individuals who have been
detained in the District’s correctional facilities reasonably suggests that each and every
criminal defendant who is currently in D.C. DOC custody—and who thus cannot take
independent measures to control their own hygiene and distance themselves from
others—should be released. But the unfortunate current state of affairs is that the
judiciary is limited in the steps that it can take to respond to the legitimate and pressing
COVID-19-related concerns that myriad defense counsel have raised in the numerous
emergency motions that have recently been filed in this jurisdiction. And, in this
Court’s view, the constraints on judicial authority derive both from the fac t that
1
Compare 41 DC Inmates Have Tested Positive for Coronavirus , NBC Wash. (Apr. 9, 2020),
https://perma.cc/TH8M-CBQH (noting that “[a] total of 41 inmates in Washington, D.C., have tested
positive for coronavirus” as of the evening of April 9, 2020) with United States v. Davis,
No. 19-cr-292, ECF No. 157 at 2 (D.D.C. Apr. 6, 2020) (“On April 6, 2020, the Court was informed
that twenty inmates at the D.C. Jail have now tested positive.”).
existing statutes mandate an individualized assessment of a detained person’s flight risk
and dangerousness prior to such person’s release into the community, and also from the
recognition that the act of releasing dangerous and/or potentially non -compliant
criminal defendants into the community itself poses substantial risks to probation
officers, law enforcement, and the public at large.
Before this Court at present is defendant Sean Ray Wiggins’s “Emergency
Motion For A Hearing To Address The Impact Of The COVID-19 Pandemic On The
Defendant’s Safety And For Possible Release To Home Confinement Pending
Sentencing.” (See Emergency Mot. for Bond Hr’g (“Def.’s Mot.”), ECF No. 95.) Like
other defendants before him, Wiggins argues that “the existence o f the COVID-19
pandemic, and its effects on our communities, including the jail community, constitutes
new information sufficient for emergency reconsideration of [Wiggins’s] continued
detention in this case[.]” (Def.’s Mot. at 11.) For its part, the government
acknowledges the dangers of COVID-19, but opposes Wiggins’s request for release
nonetheless, largely for the same reasons that it proffered during the Court’s prior
consideration of whether there were any conditions that could ensure the safety of
people in the community if Wiggins was released pretrial. (See generally Gov’t Opp’n
to Def.’s Mot. (“Gov’t Opp’n”), ECF No. 96; see also Def.’s Reply to Gov’t Opp’n
(“Def.’s Reply”), ECF No. 97.) Specifically, the government contends that Wiggins is
a danger to the community, because he has been charged with (and has now pled guilty
to) actively participating at a high level in a large heroin trafficking conspiracy; there is
substantial evidence that Wiggins also maintained a separate (albeit uncharged) cocaine
trafficking operation; and there were a significant number of firearm magazines, high -
2
caliber bullets, and other types of ammunition found in Wiggins’s residence at the time
of his arrest. (See Gov’t Opp’n at 7–8 (incorporating by reference the government’s
prior arguments for pretrial detention under 18 U.S.C. § 3142(g) (citing Gov’t Mem. for
Pretrial Detention, ECF No. 18 at 18)).)
Notably, while this Court previously indicated that its decision regarding
whether or not Wiggins should be detained pretrial was “a close call” in light of his
limited criminal history and significant family ties (see Hr’g Tr. (“Detention Review
Hr’g”), ECF No. 39 at 2), it ultimately determined that the government had established
that Wiggins was a danger to the community within the meaning of the Bail Reform Act
such that his pretrial detention was required (id. at 8). And, for the reasons explained
below, nothing about the COVID-19 pandemic alters the Court’s analysis in this regard.
Therefore, even if the Court assumes that COVID-19 is an “exceptional reason[] why
[Wiggins’s] detention would not be appropriate,” 18 U.S.C. § 3145(c), it cannot
presently conclude that Wiggins has met the conditions of release under 18 U.S.C.
§ 3143(a)(1), which is a statutory prerequisite to the exercise of the Court’s authority
under section 3145(c) to release convicted defendants who have been mandatorily
detained. Consequently, Wiggins’s emergency motion for release must be DENIED.
I.
In December of 2017, the Federal Bureau of Investigation (“FBI”) began
investigating the illegal distribution of heroin in the Fort Totten area of Washington,
D.C. (See Stmt. of the Offense, ECF No. 91 at 3.) During this long-term
investigation—which included surveillance, controlled purchases, and Title III
wiretaps—law enforcement focused on George Allen Weaver, Jr.’s drug-trafficking
3
operation, which primarily brought heroin into the region through a redistribution
network that included Michael David Smith. (See id. at 4.) From November of 2018
until July of 2019, Wiggins assisted Weaver in his narcotics trafficking by supplying
heroin to Weaver’s redistribution network when Weaver was unavailable or out of
town. (See id.) For instance, in November of 2018, an undercover law enforcement
officer requested to purchase from Smith 100 grams of heroin, which was to be supplied
by Weaver, but the officer cancelled the transaction, and Weaver then asked Wiggins to
meet him at Smith’s residence. (See id.) Weaver explained that he was leaving the area
for a few days, and he left the stash of heroin with Wiggins, so that Wiggins could
continue making drug sales in Weaver’s absence. (See id.) And Wiggins apparently
did so: when Smith contacted Wiggins shortly thereafter to request heroin for his
customers, Wiggins provided some of the drug to Smith for this purpose. ( See id.)
On July 31, 2019, the FBI obtained a grand jury indictment, charging Weaver
and other suspected co-conspirators—including Wiggins—with conspiracy to distribute
and possess with intent to distribute 100 grams or more of heroin. ( See Indictment,
ECF No. 1 at 3.) Wiggins was arrested on August 1, 2019. (See Arrest Warrant, ECF
No. 6.) That same day, federal agents executed a search warrant at Wiggins’s
residence, during which they uncovered multiple firearm magazines and ammunition, a
digital scale, a telephone, and a large amount of cash. (See Gov’t Mem. for Pretrial
Detention, ECF No. 18 at 18.)
Four days later, on August 5, 2019, the government filed a motion to have
Wiggins detained prior to trial, arguing that the charged offense created a rebuttable
presumption that no conditions of release will reasonably ensure public safety. (See id.
4
at 25 (citing 18 U.S.C. § 3142(f)(1)(C)).) Magistrate Judge G. Michael Harvey held a
detention hearing on August 6, 2019, during which he determined that Wiggins had
successfully rebutted the presumption in favor of pretrial detention, because any drug
trafficking that Wiggins was involved in was “nowhere near as significant as that which
Mr. Weaver is engaging in” and, in his view, there was “no evidence that [Wiggins]
actually sold anything” while he was standing in for Weaver. (See Hr’g Tr. (“Detention
Hr’g”), ECF No. 32 at 41.)
The government immediately requested review of the Magistrate Judge’s
decision to release Wiggins under high-intensity supervision (see Minute Entry of Aug.
6, 2019), and this Court held another hearing concerning Wiggins’s detention status on
August 13, 2019 (see Minute Entry of Aug. 13, 2019). Upon consideration of the
parties’ arguments, the Court ultimately concluded that, while Wiggins had done
enough to rebut the statutory presumption in favor of detention that is based on the
charged offense, the government had shown, by clear and convincing evidence, that “no
conditions of release, including HISP, will reasonably assure the safety of the
community[.]” (Detention Review Hr’g at 8.) In particular, the Court noted that the
fact that Wiggins was a “part-time high-level drug dealer” and the fact that “the illegal
conduct [was] not his sole or even primary occupation” did not, in themselves, weigh in
favor of his release. (Id. at 11.) Moreover, the Court found that the weight of the
evidence favored detention, because the government had “proffered intercepted phone
conversations” that evidenced drug trafficking and that “were traced directly to Mr.
Wiggins’s phone” (id.), as well as “evidence that place[d] [Wiggins] in the proximity of
illegal drugs at various times beyond the charged offense” (id. at 12). Additionally,
5
while the Court concluded that “Mr. Wiggins’s family ties, length of residence in the
community, and lack of criminal history . . . weigh in favor of release” (id. at 13), it
also found that there was “strong evidence linking [Wiggins] to illegal drug trafficking
conduct both in this case and on his own” (id. at 14), as well as evidence that Wiggins
“possessed a substantial number of dangerous [am]munitions” at the time of his arrest
(id. at 15), both of which suggested that Wiggins’s release would threaten the safety of
the community (id.). Thus, the Court ordered that Wiggins was to be detained pending
trial. (Id. at 18.)
Wiggins subsequently pled guilty to a superseding information that charged him
with unlawful possession with the intent to distribute a detectable amount of heroin.
(See Superseding Information, ECF No. 83.) Wiggins has now filed the instant
emergency motion for release from custody, in which he argues that he should be
released pending sentencing due to “the existence of the COVID -19 pandemic, and its
effects on our communities, including the jail community[.]” (Def.’s Mot. at 11).
According to Wiggins’s motion, “[a]t a minimum, it appears that it would be
appropriate for Mr. Wiggins to be released to home detention until the resolution of this
[COVID-19] outbreak” (id. at 2), and that he should be placed on high intensity
supervision in the custody of “his girlfriend at her parents’ home” (id. at 12), because
“[i]t is indisputable that we are experiencing unprecedented and exceptional
circumstances—both in the community and in the jails” (id. at 13).
Significantly for present purposes, Wiggins’s motion conflates the statutory
standards that are applicable to a detained defendant’s requests for release; for example,
his arguments rely on both the Bail Reform Act, which applies to pretrial detainees, and
6
the statutory provisions that govern motions by post-conviction defendants who are
awaiting sentencing (like Wiggins). However, insofar as Wiggins has pled guilty and
his motion suggests that the outbreak of COVID-19 and the heightened risk of
contracting the disease in jail are exceptional reasons that make his release appropriate,
Wiggins’s emergency request for release is properly construed as a motion for release
from detention pending sentencing pursuant to 18 U.S.C. § 3145(c). See also, e.g.,
United States v. Dixon, No. 20-cr-88, 2020 WL 1700001, at *1 (S.D.N.Y. Apr. 7, 2020)
(construing a similar request based on the COVID-19 pandemic as a motion pursuant to
section 3145(c)).
II.
Wiggins’s emergency motion for release must be evaluated in accordance with
Congress’s intent as expressed in the statutory provisions that govern a district court’s
authority to detain and/or release criminal defendants at various stages of the criminal
justice process. To begin with, it is clear beyond cavil that, befor e a guilty plea or
conviction, “liberty is the norm and detention prior to trial or without trial is the
carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987).
Thus, the Bail Reform Act provides that a criminal defendant can be detained before
trial only if, “after a hearing[,]” the Court “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 community[.]” 18 U.S.C. § 3142(e)(1). That statute
further prescribes that, to make this determination, a court must evaluate four factors in
the first instance: (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
7
defendant; and (4) “the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release.” Id. § 3142(g). Consequently,
a criminal defendant can only be detained pending tri al consistent with the Bail Reform
Act if, on balance, those four factors weigh in favor of detention, such that the court
can confidently conclude 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[.]” Id. § 3142(e)(1); see also United States v. Vasquez-
Benitez, 919 F.3d 546, 550 (D.C. Cir. 2019) (“In common parlance, the relevant inquiry
is whether the defendant is a ‘flight risk’ or a ‘dange r to the community.’”) 2
Once a defendant is convicted of an offense, a different detention statute, with
different presumptions, applies—namely, 18 U.S.C. § 3143. In this circumstance, far
from promoting liberty, a court is generally required to detain the defendant as the
background rule, and, notably, this detention requirement comes in two varieties: there
is either (1) a presumption of detention that a defendant can rebut with “clear and
convincing evidence” that he “is not likely to flee or pose a danger to the safety of any
other person or the community if released” under 18 U.S.C. § 3143(a)(1), or (2)
mandatory detention for defendants who have been convicted of specified crimes,
except in certain very narrow circumstances, under 18 U.S.C. § 3143(a)(2). 3 It is
2
This is not to suggest that the government must always proffer evidence concerning all fo ur factors
with respect to every detained defendant in the first instance. With respect to defendants who have
been charged with certain offenses—including offenses under the Controlled Substances Act which
carry a maximum term of imprisonment of ten year s or more—a rebuttable presumption of
dangerousness arises, 18 U.S.C. § 3142(e)(2)–(3), which “operate[s] at a minimum to impose a burden
of production on the defendant to offer some credible evidence c ontrary to the statutory
presumption[,]” United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985) (emphasis in the
original).
3
To release a defendant who faces mandatory detention pending sentencing under 18 U.S.C.
§ 3142(a)(2), the judicial officer must find either that “there is a substantial likelihood that a motion for
8
reasonably clear that section 3143(a)(1) requires a court to make the same flight risk
and dangerousness assessment that the Bail Reform Act requires, see United States v.
Weekes, No. 13-cr-187, 2013 WL 6571598, at *1 (D.D.C. Dec. 13, 2013), only, now,
detention is presumed, and it is the defendant’s burden to convince the court that he
satisfies the non-dangerousness and no-flight-risk conditions of release, see 18 U.S.C.
§ 3143(a)(1). By contrast, per section 3143(a)(2), defendants who have been convicted
of certain offenses for which a maximum sentence of 10 or more years of imprisonment
is prescribed—such as Wiggins—have no such opportunity to secure release by
rebutting the presumption of detention at the time of their conviction; instead, they
ordinarily must be detained pending sentencing. See 18 U.S.C. 3143(a)(2).
Importantly, there appears to be one additional escape hatch for a defendant who
is subject to mandatory detention pending sentencing under section 3143(a)(2): the
statutory provision that is codified at 18 U.S.C. § 3145(c). In relevant part, section
3145(c) provides that
[a] person subject to detention pursuant to section 3143(a)(2) . . . , and who
meets the conditions of release set forth in section 3143(a)(1) . . . , may be
ordered released, under appropriate conditions, by the judicial officer, if it is
clearly shown that there are exceptional reasons why such person’s detention
would not be appropriate.
Id. § 3145(c). Thus, section 3145(c) permits the court to release “under appropriate
conditions” detainees who satisfy three criteria. First, the detainee must be a person
who is, or was, “subject to detention pursuant to section 3143(a)(2)”; second, the
acquittal or new trial will be granted” or that “an attorney for the Government has recommended that no
sentence of imprisonment be imposed on the person[,]” and also further find, “by clear and convincing
evidence[,] that the person is not likely to flee or pose a danger to any other person or the community .”
18 U.S.C. § 3143(a)(2).
9
detained must “meet[] the conditions of release set forth in section 3143(a)(1)”; and
third, the detainee must “clearly show[] that there are exceptional reasons why [his]
detention would not be appropriate.” Id.
In the instant case, there is no dispute that Wiggins is a defendant who is
awaiting trial after his plea of guilty with respect to a crime that made him subject to
mandatory detention under section 3143(a)(2). 4 Therefore, this Court’s assessment of
Wiggins’s emergency request for release turns on whether Wiggins “meets the
conditions of release set forth in section 3143(a)(1)[,]” and has “clearly shown that
there are exceptional reasons why [his] detention would not be appropriate.” Id.
§ 3145(c).
Before the Court addresses that analysis, three other points are worth noting.
First, in this Court’s view, the government’s contention that district judges lack the
authority to release defendants under section 3145(c) (see Govt.’s Opp’n at 4–5) is
mistaken. That is, the Court agrees with Wiggins (see Def.’s Reply at 2–3) that the
plain text of section 3145(c) establishes that a district judge who has jurisdiction over a
defendant’s criminal case qualifies as the “judicial officer” who may order the
4
Wiggins qualifies as such because he pled guilty on March 2, 2020, pursuant to a plea agreement that
is wired to the guilty plea of one of his co-defendants, George Allen Weaver, Jr. (see Plea Agreement,
ECF No. 90), and this Court entered his guilty plea. During the plea hearing that the Court conducted,
both Wiggins and Weaver admitted to their criminal conduct, and, in particular, Wi ggins pled guilty to
conspiracy to distribute and possess with intent to distribute a detectable amount of heroin, in violation
21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, which carries a maximum sentence of 20 years of
incarceration. (See Minute Entry of Mar. 2, 2020.) The Court deferred its agreement to impose the
binding sentence contained in Weaver’s plea agreement, which was drafted pursuant to Fed. R. Crim. P.
11(c)(1)(C), in order to permit the Court to review the not-yet-issued presentence investigation report
as confirmation that the binding sentence in Weaver’s plea agreement is reasonable. (See Minute Entry
of Mar. 2, 2020.) But as of now, by virtue of the entry of his guilty plea and for purposes of his
detention status, Wiggins “has been found guilty of an offense in a case described in subparagraph . . .
(C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence [.]” 18
U.S.C. § 3143(a)(2).
10
defendant released. See 18 U.S.C. § 3156(a)(1) (defining generally the term “judicial
officer” for the purpose of 18 U.S.C. §§ 3141–3150 to mean “any person or court
authorized . . . to detain or release a person before trial or sentencing or pending appeal
in a court of the United States”). The weight of authority specifically holds as much,
and this is so notwithstanding the fact that the first part of section 3145(c) is plainly
directed to the court of appeals. See United States v. Meister, 744 F.3d 1236, 1237–38
(11th Cir. 2013) (noting that each of the other eight circuits that has considered whether
or not district courts have the authority to apply § 3145 have found that they do); see
also, e.g., United States v. Christman, 596 F.3d 870, 871 (6th Cir. 2010) (finding that a
district court has authority to make a section 3145(c) determination); United States v.
DiSomma, 951 F.2d 494, 496 (2d Cir. 1991) (same); United States v. Harris, No. 19-cr-
356, 2020 WL 1503444, at *3 (D.D.C. Mar. 27, 2020) (same). 5
Second, when determining whether or not Wiggins satisfies “the conditions of
release set forth in section 3143(a)(1)” for section 3145(c) purposes, the Court must
evaluate the record facts in light of the four dangerousness and flight-risk factors that
5
The first half of section 3145(c) “provide[s] for immediate appe llate review of the detention
decision[.]” Salerno, 481 U.S. at 752; see also 18 U.S.C. § 3145(c) (stating that “[a]n appeal from a
release or detention order, or from a decision denying revocation or amendment of such an order, is
governed by the provisions of section 1291 of title 28 and section 3731 of this title”) . But Congress
enacted this part of section 1345(c) more than five years prior to language concerning the release of a
mandatorily detained defendant. See 136 Cong. Rec. 36750 (daily ed. Oct. 27, 1990) (adding the
release provision to section 3145(c) as part of the Crime Control Act of 1990). This later amendment
appears to have derived from a particular concern that the Department of Justice had about the need for
certain defendants who faced mandatory detention under section 3143(a)(2) to be permitted to remain
out of jail pending sentencing under exceptional cir cumstances, see Letter from Carol T. Crawford,
Assistant Att’y Gen, Office of Legal Affairs, Dep’t of Justice, to Paul Simon, U.S. Senator (July 26,
1989)—a type of judgment call that is ordinarily in the purview of the district judge who is presiding
over the defendant’s case. And the legislative history of the 1990 amendment further indicates that the
second half of section 3145(c) includes district court judges, insofar as an early draft of this
amendment granted authority to release defendants specific ally to “a court of appeals or a judge
thereof,” 135 Cong. Rec. 22940 (daily ed. Oct. 3, 1989), but the provision that was eventually enacted
uses the broader, statutorily defined term “the judicial officer [,]” see 18 U.S.C. § 1345(c).
11
Congress has prescribed in 18 U.S.C. §3142(g). This is because section 3145(c)
specifically references section 3143(a)(1), which, in turn, cross -references the modes of
releasing a defendant set forth in 18 U.S.C. §§ 3142(b) and (c). And it is well
established that “[t]he factors that the court uses to determine ‘whether there are
conditions of release that will reasonably assure the appearance of the person as
required and the safety of any other person and the comm unity’ under §§ 3142(b) and
(c) are provided in § 3142(g).” United States v. Hawkins, No. 2:10-cr-458, 2013 WL
1500376, at *1 (E.D. Cal. Apr. 10, 2013) (quoting 18 U.S.C. § 3143(a)(1)); see also
Weekes, 2013 WL 6571598, at *1 (“To determine whether a defendant subject to § 3143
poses a risk of flight or danger, the court may consider the factors set forth in
§ 3142(g).”); United States v. Tann, No. 04-cr-392, 2006 WL 1313334, at *4 (D.D.C.
May 12, 2006) (same).
Third, and finally, with respect to the requirement of “exceptional reasons why
[the defendant’s] detention would not be appropriate,” it is obvious that “a plain
reading of the statute offers little if any help[,]” United States v. Garcia, 340 F.3d 1013,
1016–17 (9th Cir. 2003), and, unfortunately, the legislative history is also “sparse and
uninformative[,]” DiSomma, 951 F.2d at 497. Congress did not define the term
“exceptional reasons” in the statute, nor did it provide examples, so, naturally, courts
have laid out their own standards. See, e.g., Garcia, 340 F.3d at 1018 (explaining that,
when evaluating a release motion under section 3145(c), a “court should examine the
totality of the circumstances and, on the basis of that examination, determine whether,
due to any truly unusual factors or combination of factors . . . it would be unreasonable
to incarcerate the defendant” pending sentencing); United States v. Larue, 478 F.3d
12
924, 925 (8th Cir. 2007) (defining “exceptional” under § 3145(c) as “clearly out of the
ordinary, uncommon, or rare.”). By adopting the term “exceptional reasons” but
declining to define it, it appears that “Congress placed broad discretion in the district
court to consider all the particular circumstances of the case before it and draw upon its
broad experience with the mainsprings of human conduct.” Garcia, 340 F.3d at 1018
(internal quotation marks and citation omitted). And to the extent that Congress
requires a determination of whether “there are exceptional reasons why such person’s
detention would not be appropriate,” 18 U.S.C. § 3145(c) (emphasis added), it would
also seem as though the required exceptional reason must be particular to the defendant
who is requesting release notwithstanding the fact that he is subject to mandatory
detention. Cf. United States v. Lee, No. 19-cr-298, 2020 WL 1541049, at *4 (D.D.C.
Mar. 30, 2020) (asking, in the context of a pretrial detainee’s request for release
pursuant to section 3142(f), whether “COVID-19 pandemic has any material impact on
the section 3142(g) factors that led [the Magistrate Judge] to determine that pretrial
detention was warranted in [the defendant’s particular] case.”).
III.
Given these statutory standards, Wiggins has an uphill battle with respect to
establishing that he can be, and should be, released from detention under section
3145(c), even if the Court assumes—without deciding—that the COVID-19 pandemic
qualifies as an “exceptional reason[]” for concluding that Wiggins’s detention is “not
. . . appropriate.” 18 U.S.C. § 3145(c). This is primarily because, as explained above,
Wiggins also has to demonstrate that he “meets the conditions of release” in section
3143(a)(1), and in the context of the government’s appeal of Magistrate Judge Harvey’s
13
detention order, this Court already specifically determined that Wiggins’s release poses
a danger to the safety of the community, pursuant to 18 U.S.C. § 3142(g). Thus, it
appears that Wiggins’s only hope of demonstrating, by clear and convincing evidence,
that he meets the conditions of release for section 3145(c) purposes now, when this
Court previously and unfavorably assessed the detention issue then, is to show that
circumstances have changed, or that newly relevant evidence sheds different light on
the factors at issue, in a manner that compels a different conclusion about his
dangerousness than this Court reached before. Cf. id. § 3142(f). For the reasons
explained below, Wiggins’s motion falls short of meeting this mark.
First of all, defense counsel’s contention that “the nature of the offense is a little
less serious than it was at the time of the detention hearing” because Wiggins has now
pled guilty to a less serious crime from a sentencing standpoint ( see Def.’s Reply at 9
(citing to 18 U.S.C. § 3142(g)(1))) is unpersuasive. It is well established that the
statute of conviction alone does not establish the seriousness of an offense. And
Wiggins has now freely and fully admitted to playing a substantial role in a conspiracy
to distribute at least 100 grams of heroin, and also to possessing v arious items
indicative of unlawful and dangerous conduct, including firearm magazines and high -
caliber ammunition. (See Stmt. of the Offense at 4.) It is true that a mandatory
minimum penalty no longer applies to Wiggins conduct by virtue of the particu lar
offense to which Wiggins has pled guilty, but in this context, that is neither here nor
there, because Wiggins’s own admissions regarding his active and willful participation
in inherently dangerous criminal conduct plainly weighs in favor of his conti nued
detention for the purpose of 18 U.S.C. § 31342(g)(1).
14
With respect to the weight of the evidence against Wiggins, see 18 U.S.C.
§ 3142(g)(2), this factor, too, weighs in favor of detention, and perhaps even more so
now than before. By entering a guilty plea, Wiggins has knowingly and voluntarily
admitted that he engaged in serious and unlawful behavior concerning heroin
trafficking, which is certainly strong and incontrovertible evidence that he has, in fact,
committed the charged crime. Defense counsel’s suggestion that this weight-of-the-
evidence analysis now relates “only” to an assessment of record evidence concerning
“the likelihood that the person will fail to appear or will pose a danger” (Def.’s Reply at
10 (quoting United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985))) finds no
support in this jurisdiction. See, e.g., United States v. Taylor, 289 F. Supp. 3d 55, 66
(D.D.C. 2018) (explaining that “the weight of the evidence factor” does not focus “on
the defendant’s danger to the community . . . to the exclusion of any consideration of
the strength of the government’s case”); see also United States v. Ausby, No. 72-cr-67,
2019 WL 2452988, at *4 n.1 (D.D.C. June 11, 2019) (same). Nor could it, given that
the “relevant statutory language does not focus on the evidence of danger to the
community . . . ; rather, it requires that the judicial officer consider ‘the weight of the
evidence against the person[.]’” Taylor, 289 F. Supp. 3d at 66 (emphasis in original)
(quoting 18 U.S.C. § 3142(g)(2)).
As a general matter, and as this Court noted during the pretrial detention hearing,
Wiggins’s “history and characteristics” do weigh in favor of his release, 18 U.S.C.
§ 3142(g)(3), and defense counsel here again stresses Wiggins’s “longstandi ng ties to
the D.C. area[,]” his “strong family and community support[,]” and his recent history of
employment (Def.’s Reply at 10–11). This Court previously credited these
15
characteristics; yet, it determined nevertheless that they were insufficient to ti p the
balance in favor of Wiggins’s release. (See Detention Review Hr’g at 14 (concluding
that “this factor ultimately does not and cannot outweigh the considerations about the
nature of the offense and the weight of the evidence against Mr. Wiggins as far as drug
dealing is concerned”).) And COVID-19 appears to have no impact on this equation
under the circumstances presented here. Wiggins has not demonstrated, for example,
that he has an “underlying medical condition[] that make[s] [him] especially vulnerable
to the virus[,]” Lee, 2020 WL 1541049, at *6, which might reasonably cause a court to
reevaluate the “history and characteristics” factor and reach a different result with
respect to the detention calculus, see, e.g., United States v. Davis, No. 19-cr-292, ECF
No. 157 at 2–3 (D.D.C. Apr. 6, 2020) (ordering the temporary release of a pretrial
detainee who “is currently suffering from acute bronchitis and taking five medications,
including albuterol and prednisone, a corticosteroid that is an anti -inflammatory and
immunosuppressant”). Here, the defense has not provided the Court with any basis for
concluding that this third factor should be afforded any greater weight now than the
Court gave it during its earlier review of Wiggins’s detention status.
Rather, Wiggins’s motion mostly points to the fourth and final factor and
vigorously maintains that “the nature and seriousness of the danger to any person or the
community that would be posed by [his] release,” 18 U.S.C. § 3142(g)(4), now weighs
heavily against his continued detention, insofar as “it is the incarceration that is
dangerous in the context of the COVID-19 pandemic[,]” and Wiggins’s “release under
house arrest until the global pandemic abates will actually enhance the safety of the
community” (Def.’s Reply at 11). This contention cannot b e credited consistent with
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the statutory framework, for the reasons that this Court recently explained in Lee. For
one thing, “accepting this argument would require the Court to ignore the fact that the
relevant statutory inquiry is not the benefits that a defendant’s release would bring
about (however significant) or the harms that his incarceration would cause (however
substantial) . . . [but] ‘the danger’ that ‘would be posed by the person’s release.’” Lee,
2020 WL 1541049, at *5 (quoting 18 U.S.C. § 3142(g)(4)). And, just as in Lee,
Wiggins has not shown, by clear and convincing evidence or otherwise, that, if he is
released, he would not engage in the same kinds of inherently dangerous and illegal
activities that gave rise to his conviction in this case. (Cf. Detention Review Hr’g at 15
(noting specifically that Wiggins had “used a cellphone to arrange drug sales[,]” and
rejecting release partly because this “is not the kind of conduct that is amenable to
effective supervision”).) Furthermore, it is significant that Wiggins’s established
offense conduct spanned many months and was only revealed after extensive
investigation by law enforcement. Thus, it is also clear to this Court that the potential
danger posed by Wiggins’s release in the age of COV ID-19 includes the heightened
safety concerns that might exist for “the probation officers who would be tasked with
monitoring his behavior while he is out of jail” pending sentencing. Lee, 2020 WL
1541049, at *5.
In short, and unfortunately for Wiggins, even if the COVID-19 pandemic rises to
the level of an “exceptional reason[]” for releasing him pending sentencing under
section 3145(c), the law authorizes such release only if Wiggins “meets the conditions
of release set forth in section 3143(a)(1),” 18 U.S.C. § 3145(c), and for the reasons
explained above, this Court cannot conclude that Wiggins has shown “by clear and
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convincing evidence” that the Court’s previous specific assessment of his
dangerousness leads to a different result today, such that he “meets the conditions of
release set forth in section 3143(a)(1)” as section 3145(c) requires, see id.
§§ 3143(a)(1), 3145(c).
IV.
This Court’s conclusion that Wiggins has not satisfied the prerequisites of
section 3145(c) is all that is required to resol ve the pending emergency motion for
release. Although Wiggins also appears to request release under 18 U.S.C. § 3142(i)
(see Def.’s Reply at 12), such reliance is misplaced under the circumstances presented
here. See United States v. Goldman, No. 19-cr-0263, 2020 WL 1547380, at *2 (D.
Minn. Apr. 1, 2020) (noting that applying section 3142(i) to detainees awaiting
sentencing would “ignore[] [their] adjudication of guilt” and also result in the
“application of the less stringent legal standard that applies to pretrial release”); see
also United States v. McDuffie, No. 19-cr-212, 2020 WL 1659879, at *1 (S.D.N.Y. Apr.
3, 2020) (“Although defense counsel brings this motion pursuant to 18 U.S.C.
§ 3142(i), which allows for temporary pretrial release for a compelling reason, the
motion is governed by 18 U.S.C. § 3145(c), which applies when a defendant is awaiting
sentencing.”).
Nor can Wiggins credibly suggest that he should be released because his
continued detention is fundamentally unfair, in violation of his Fifth Amendment rights
or otherwise. (See Def.’s Mot. at 12.) The crux of Wiggins’s argument in this regard
appears to be that “[t]he Due Process Clause of the 5th Amendment protects against
unnecessary [sentencing] delays” and also that, as a matter of procedural fairness, “the
Court should order temporary release because it is necessary for the continued
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preparation of his defense for sentencing in a timely manner.” (Def.’s Reply at 13
(internal quotation marks and citations omitted).) Wiggins has waived any
constitutional claim concerning the right to a speedy sentencing as part of his plea
agreement (see Plea Agreement, ECF No. 90 at 7), and this aspect of his Due Process
Clause argument also fails on its merits, because Wiggins’s sentencing date has not
changed: it remains slated for June 11, 2020—a date that was selected with the consent
of the parties during the plea hearing on March 2, 2020, before the COVID-19 outbreak
in D.C. Jail, due to the amount of time that is necessary for the Probation Office to
compile a presentence report. (See Minute Entry of Mar. 2, 2020.) See also United
States v. Lovasco, 431 U.S. 783, 790 (1977) (explaining that, in order to determine
whether a defendant has been deprived of his due process right to a prompt sentencing,
the Court “must consider [1] the reasons for the delay as well as [2] the prejudice to the
accused”).
To the extent that defense counsel suggests that procedural fairness to Wiggins
requires that he be released in order to aid in the preparation of his defense, that
argument fares no better. The scope of Wiggins’s defense at this point is quite limited,
since he has already entered a guilty plea, and his sentencing date is not sufficiently
imminent to warrant temporary release on the grounds that he needs to prepare. Cf.
United States v. Villegas, No. 2:19-cr-568, 2020 WL 1649520, at *2 (C.D. Cal. Apr. 3,
2020) (“If federal courts had to order temporary release just because it would aid a
defendant’s ability to work with counsel, the exception in section 3142(i) would
swallow all detention orders.”); United States v. Stephens, No. 15-cr-95, 2020 WL
1295155, at *3 (S.D.N.Y. Mar. 19, 2020) (finding that, where a hearing on alleged
violation of supervised release was scheduled for the following week and legal visits to
jail had been suspended, the temporary release of a pretrial defendant who is otherwise
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unable “to prepare his defenses” was warranted).
V.
In conclusion, the Court fully acknowledges the unprecedented magnitude of the
COVID-19 pandemic and the extremely serious health risks that it presents for all of us,
including, and perhaps especially, those individuals who are unfo rtunately presently
detained in federal custody. The conditions of detention within the District of
Columbia’s correctional facilities are currently being assessed, see Banks v. Booth, No.
20-cv-849 (D.D.C. Mar. 30, 2020), as they should be, given the alarming rate at which
individuals who are in D.C. DOC custody are now contracting the virus. In the
meantime, however, “Congress has given judges only limited tools” to address the
requested release of individual detainees. United States v. Nkanga, No. 18-cr-713, 2020
WL 1529535, at *4 (S.D.N.Y. Mar. 31, 2020). It is crystal clear that “[t]he dangers of
the moment . . . call for more systematic action than a judge can grant in any one
case[,]” and that “[o]nly the political branches can do what this moment requires[.]” Id.
at *3. But, at present, it falls to the courts to determine, on an ad hoc, case -by-case
basis, whether each detained defendant who files a motion for release on the basis of
COVID-19 can be let out jail consistent with the dictates of th e law.
In the instant case, as the law currently stands, this Court is called upon to
evaluate the release motion of a healthy and relatively young detainee who is in D.C.
Jail mandatorily because he has pled guilty to serious and dangerous criminal condu ct.
This Court previously and carefully determined that no conditions of release could
assure the safety of the community if this individual is not held in custody, and the
generalized risks that the COVID-19 pandemic poses for residents of the D.C. Jail do
not impact the Court’s prior considered analysis of his dangerousness. Under these
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circumstances the Court cannot find that Wiggins is a person who “meets the conditions
of release set forth in 3143(a)(1)” as a threshold matter. See 18 U.S.C. § 3145(c).
Therefore, it is hereby
ORDERED that the pending emergency motion (see ECF No. 95) is DENIED.
Date: April 10, 2020 Ketanji Brown Jackson u
KETANJI BROWN JACKSON
United States District Judge
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