United States v. Thorne ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 18-389 (BAH)
LINWOOD DOUGLAS THORNE, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM AND ORDER
Two weeks after this Court denied defendant Linwood Douglas Thorne’s motion for
temporary release from pretrial detention, see Mem. & Order (Mar. 31, 2020) (“March Denial
Order”), ECF No. 90, he filed the pending Second Motion for Temporary Release From
Detention Based Upon the COVID-19 Pandemic (“Def.’s Mot.”), ECF No. 91. This second
motion is presented with far more extensive documentation than the first in an effort to cure gaps
in his prior motion and fulfill the statutory requirements of 18 U.S.C. § 3142(i). Based upon the
memoranda submitted in support and opposition, the exhibits thereto, and the entirety of the
underlying record, he again falls short, as explained below. Consequently, this motion is
DENIED.
The defendant has been detained since January 10, 2019, when he conceded the
government’s motion for pretrial detention and waived written findings of fact, see Min. Entry
(Jan. 10, 2019), and is currently awaiting trial on six counts of unlawful possession with intent to
distribute heroin, marijuana, and fentanyl, as well as unlawful firearms possession, in violation
of 18 U.S.C. §§ 924(c)(1) and 922(g)(1), and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i),
841(b)(1)(C), 841(b)(1)(D), and 846. See Superseding Indictment, ECF No. 28. Due to his prior
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felony drug conviction, in 1999, for Conspiracy to Distribute and Possess with Intent to
Distribute Crack Cocaine and Possession with Intent to Distribute Crack Cocaine, in the District
of Maryland, he faces an enhanced statutory penalty, pursuant to 21 U.S.C. §§ 841(b), 851.
Gov’t’s Notice of Prior Conviction And Sentencing Enhancement Pursuant To 21 U.S.C. § 851,
ECF No. 70. Thus, if convicted, defendant faces “up to life imprisonment, along with a
mandatory minimum sentence of twenty years (based on the penalties for 18 U.S.C. § 924(c), 21
U.S.C. § 841(b)(1)(A)(i), and the enhancement, ECF No. 70).” Gov’t’s Opp’n Def.’s Mot. for
Temporary Release at 9, ECF No. 89. These charges arose from the seizure at the defendant’s
residence of over 44 kilograms of heroin, laced with fentanyl, over 50 pounds of marijuana, and
five firearms.
As noted, defendant previously moved, on March 27, 2020, for temporary release from
pretrial detention on two grounds: (1) 18 U.S.C. § 3142(i), which allows for temporary release
“in the custody of a United States marshal or another appropriate person” when release is
“necessary for preparation of the person’s defense or for another compelling reason,” March
Denial Order at 2; and (2) the Fifth Amendment’s due process clause, in light of the health risk
posed by the COVID-19 pandemic, id. at 4; see also Def.’s Mot. for Temporary Release From
Detention Based Upon the COVID-19 Pandemic (“Def.’s 1st Mot.”), at 3–4, ECF No. 88.
Defendant’s first motion was denied for two reasons: (1) defendant did not adequately document
his medical history and purported health risk, and thus failed to meet his burden in demonstrating
that temporary release was “necessary,” see March Denial Order at 2–3; and (2) defendant did
not identify an “appropriate person” to act as a custodian, as required by Section 3142(i), see id.
at 3–4 (citing 18 U.S.C. § 3142(i) (stating that release may be made to “the custody of a United
States marshal or another appropriate person...”)). This Court explained that, “given the
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circumstances, including the seriousness of the charges, the lengthy period of incarceration faced
by defendant, and defendant’s apparent flight, following execution of the search warrant at his
residence in December 2018, to Maryland, where he was subsequently arrested in January 2019,
no “appropriate person” appears to be available to assure compliance with any release
conditions.” Id.1
In his second pending motion for temporary release, defendant, again, does not contest or
seek reconsideration of the determination that no condition or combination of conditions of
release could reasonably assure his appearance as required or the safety of the community, under
18 U.S.C. § 3142(e). Instead, defendant now bolsters his motion for temporary release under
Section 3142(i), by proposing, after one false start, that defendant’s niece, is an appropriate
custodian. Def.’s Supplemental Reply to Gov’t’s Opp’n to Def.’s Mot. (“Def.’s Suppl. Reply”),
at 1, ECF No. 95.2 In addition, he provides detailed medical records relating to a 2014 lung
surgery and diagnosis of hypertension. See Def.’s Mot. at 2–3; Def.’s Resp. Court Order on
Impact of Memorandum Opinion and Temporary Restraining Order (“Def.’s Resp.”), ECF No.
96.
Section 3142(i) “provides a distinct mechanism for temporarily releasing a detained
defendant, in a manner that has nothing to do with a revisiting of the initial detention
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Defendant’s Fifth Amendment due process claim was also found not to warrant release, since a violation of
these rights occurs only when conditions of confinement “objectively constitute a ‘serious’ deprivation and stem
from the ‘deliberate indifference’ of custodial officials,” March Denial Order at 5 (citing Wilson v. Seiter, 501 U.S.
294, 297 (1991)), and finding that D.C.’s Department of Corrections, where defendant is detained, “has adopted
protocols and is taking precautions to isolate known Covid-19 cases and protect detainees like the defendant,” id.
This claim is not revived in the pending second motion.
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Defendant initially proposed a “close friend” as a third-party custodian, Def.’s Mot. at 1–2, but following
the government’s sealed submission containing information making that person a wholly inadequate custodian,
Gov’t’s Opp’n to Def.’s Mot., at 6–7, ECF No. 93, defendant requested a temporary stay in consideration of his
motion to identify a more appropriate person, which motion was granted, Minute Order (April 17, 2020) (granting
defendant’s request for additional “time to obtain the new name and contact information” for a third-party custodian
“before ruling on this motion” (quoting Def.'s Reply to Gov't's Opp'n to Def.’s Mot., at 2, n.3, ECF No. 94)).
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determination.” United States v. Lee, 19-cr-298 (KBJ), 2020 WL 1541049, at *3 (D.D.C. Mar.
30, 2020). Under this statutory provision, a defendant otherwise subject to pretrial detention
may be granted temporary release by showing both (1) that he would be released to “the custody
of a United States marshal or another appropriate person,” and (2) that the temporary release is
“necessary for” a “compelling reason.” 18 U.S.C. § 3142(i); see Lee, 2020 WL 1541049, at *3;
United States v. Armstead, Nos. 19-cr-00369 (APM), 18-cr-00357 (APM), 2020 WL 1821130, at
*1 (D.D.C. Apr. 10, 2020). An “appropriate person” under Section 3142(i), should at least meet
the qualifications for a designated third-party custodian, who “must agree[] to assume
supervision and to report any violation of a release condition” and be “able reasonably to assure
the judicial officer that the person will appear as required and will not pose a danger to the safety
of any other person or the community.” 18 U.S.C. § 3142(c)(1)(B)(i). Then, to succeed on a
3142(i) motion, “[a] defendant has the burden of showing that temporary release is ‘necessary,’”
Lee, 2020 WL 1541049, at *3 (alteration in original) (internal quotation marks omitted) (quoting
United States v. Stephens, No. 15-cr-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020)).
In assessing both statutory elements for exercise of the discretion inherent in Section
3142(i), the Court must be mindful of the factors set out in 18 U.S.C. § 3142(g). Obviously,
whether a third-party custodian is “appropriate” for a particular defendant, and whether the
reason for release is “compelling” and makes release “necessary,” under Section §3142(i), turns
on the seriousness and circumstances of the offense charged, the defendant’s criminal history and
characteristics, and “the nature and seriousness of the danger to any person or the community
that would be posed by the person’s release,” 18 U.S.C. § 3142(g)(4), even on a temporary basis.
Here, the defendant has not met either prong of this burden. To begin with, the defendant
argues that his medical history and present health condition put him at a heightened risk of
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danger in the face of COVID-19, and that such risk is a “compelling reason” for temporary
release. To this end, the defendant submits medical records demonstrating that he currently
suffers from hypertension and had lung surgery in 2014. See Def.’s Mot. at 2–3; id., Ex. 2,
Continuity of Care Document (Apr. 9, 2020), ECF No. 91-2; [C.T.F. Intake Screening] (Jan. 1,
2019), ECF No. 97-2; [D.C. Jail Sick Call Exam Record] (Mar. 17, 2020), ECF No. 97-4.
Additionally, the defendant relies on a medical declaration, which, though not specifically
tailored to the defendant’s circumstances, confirms that hypertension and chronic respiratory
diseases increase a person’s vulnerability to COVID-19. See Def.’s Mot., Ex. 3, Declaration of
Dr. Jonathan Giftos (Apr. 1, 2020) (“Giftos Decl.”) at 6, ECF No. 91-3. Finally, the defendant
points to recent findings made in Banks v. Booth, No. 20-cv-849 (CKK), 2020 WL 1914896
(D.D.C. Apr. 19, 2020), where another Judge on this Court determined, inter alia, that “as of
April 4, 2020, the infection rate in DOC facilities was over seven times the infection rate of the
District of Columbia at large.” Banks, 2020 WL 1914896, at *6; Def.’s Resp. at 2–3.
The government concedes, as it must, the seriousness of the COVID-19 pandemic, but
questions the severity of defendant’s underlying health condition. See Gov’t’s Resp. Regarding
Impact of Temporary Restraining Order and Memorandum Opinion in Banks v. Booth, 20-cv-
849 (CKK) (“Gov’t’s Resp.”) at 5–7, ECF No. 101. The government points out that defendant’s
health records are equivocal. While defendant suffers from hypertension, the seriousness of this
condition is somewhat mitigated by records showing that he does not take prescribed
medications consistently when not in jail. See [Medical Exam Record] (n.d.), ECF No. 97-3
(defendant “non-compliant with medications” for hypertension; “on & off meds on street, meds
when incarcerated only”). Thus, in this respect, defendant’s hypertension is treated and treated
consistently when he is detained.
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As to defendant’s respiratory condition, he had lung surgery in 2014, but more recent
medical screenings do not reveal any serious, ongoing complications or current diagnosis of lung
disease. Chest and lateral x-rays administered in March, 2020 showed “pleural scarring” from
the surgery but “[n]o acute soft tissue or osseous pathology” and “[n]o focal infiltrates.” [D.C.
Jail Sick Call Exam Record] (Mar. 17, 2020), at 1, ECF No. 97-4. A physical examination
revealed no respiratory irregularities, and defendant’s complained-of symptoms were ultimately
diagnosed as a routine upper viral respiratory infection. Id. at 3.
Notwithstanding the legitimate questions raised by the government, defendant’s medical
conditions raise a heightened risk to the severity of a COVID-19 infection for him, and therefore
heightened concern about the risks posed by his continued pretrial detention. This does not make
for an easy case. These concerns are only compounded by the findings in Banks about deficient
conditions in the District’s Department of Corrections (“DOC”). Although the Banks court did
not order a general release of prisoners, Banks, 2020 WL 1914896, at *13, DOC conditions, as
documented in a thorough inspection report prepared by an independent third-party, prompted
issuance of a Temporary Restraining Order (“TRO”) requiring DOC to undertake immediate
remedial measures to prevent the further spread of COVID-19 within DOC facilities, including,
inter alia, (1) expediting the “triage process associated with sick call requests on [] non-
quarantine units,” Banks, 2020 WL 1914896, at *13; (2) conducting “additional staff training on
the use of the non-touch, infrared thermometers,” id. at *14; (3) taking “immediate steps to
provide consistent and reliable access to legal calls, personal telephone calls, daily showers, and
clean clothing and clean linens to all inmates on isolation status,” id.; (4) ensuring “appropriate
and consistent implementation of social distancing policies by addressing limitations in current
staffing levels,” id.; and (5) ensuring “that all PPE issued is properly fitted” and that “all DOC
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staff receive instruction on the proper disposal of PPE,” id. DOC is taking steps to comply with
these directives, so the Banks TRO, standing alone, does not justify the defendant’s release from
detention at this time. See Gov’t’s Resp. at 3. Indeed, the Court retains an independent
responsibility to assess the individualized circumstances of this case in light of the statutory
requirements of the Bail Reform Act, and courts in this district have continued to deny
emergency motions for release since the issuance of the TRO in Banks when individualized
circumstances so require. See, e.g., Mem. Op. & Order, United States v. Jones, No. 19-cr-232
(EGS), ECF No. 41, (D.D.C. Apr. 23, 2020).
The individualized circumstances of defendant’s case make it difficult to conceive of any
third-party custodian “able reasonably to assure the judicial officer that the person will appear as
required and will not pose a danger to the safety of any other person or the community.” 18
U.S.C. § 3142(c)(1)(B)(i). In any event, the current proposed third-party custodian certainly
does not qualify. As noted supra n. 2, defendant withdrew his initial proposed third-party
custodian and now suggests his niece, who lives in a two-bedroom apartment in Oxon Hill,
Maryland, with her three-year-old child, and works at night as an unarmed security guard. Def’s
Suppl. Reply at 1. During nights, the niece’s mother supervises the child. Id. The niece’s
parental and work responsibilities raise obvious concern about her practical ability to monitor
defendant, were he released on strict home confinement, let alone control defendant’s conduct to
stop him from fleeing, as he appears to have done in this case after execution of the search
warrant at his home, or to stop him from engaging in criminal activity. This concern is
magnified by the fact that the defendant’s residence, where large quantities of heroin and
marijuana and firearms were seized, pursuant to a search warrant, was shared with a woman and
her minor child. See Gov’t’s Opp’n to Def.’s Mot. at 7, ECF No. 93. The presence of a minor
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child posed no obstacle to defendant’s charged conduct. Defendant’s niece does not provide
confidence as an “appropriate” third-party custodian within the meaning of Section 3142(i).
Moreover, based on monitoring of defendant’s jail calls while detained, the government
has identified several calls highlighting defendant’s anger towards one of the witnesses in the
case, which witness has repeatedly expressed fear for his/her life due to concerns over defendant
and, during the course of the government’s investigation, has been shot at in a drive-by shooting.
Gov’t’s Resp. at 4. At this time, the government “cannot and does not attribute that shooting to
the defendant.” Id. Nonetheless, the government expresses meaningful and good-faith concerns
over the security of its witnesses and the potential threat posed by defendant, whose
communications would be freed of any law enforcement monitoring if released to the custody of
his niece.
Weighing all of the individual facts of this case carefully, this Court concludes that the
defendant’s health condition, even in the midst of the COVID-19 pandemic and conditions in
DOC facilities, does not make his temporary release “necessary,” as required under Section
3142(i), let alone to the proposed third-party custodian, in light of the risks posed by defendant to
flee and endanger the community. Indeed, as the government sums up the specific circumstances
here, “it is impossible to envision a scenario where a figure like the defendant, given his criminal
history, demonstrated flight, and odd conduct before the Court, can be trusted to take this Court’s
orders seriously.” Id. at 5.3
Accordingly, for these reasons, it is hereby
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The “odd conduct” referenced by the government has prompted this Court to grant, in July 2019, defense
counsel’s request for defendant’s competency evaluation, Order (July 12, 2019), ECF No. 15, and includes
defendant’s subsequent correspondence to the Court, see Def.’s Personal Letters (Aug. 6, 2019), ECF Nos. 17, 18.
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ORDERED that the defendant’s Second Motion for Temporary Release From Detention
Based Upon the COVID-19 Pandemic, ECF No. 91, is DENIED.
SO ORDERED.
Date: April 27, 2020
__________________________
BERYL A. HOWELL
Chief Judge
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