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

(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

(c)(1) and 922(g)(1), and

(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

1 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

(b), 851.

Gov’t’s Notice of Prior Conviction And Sentencing Enhancement Pursuant To

,

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

(c),

(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)

(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,

; 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

at 3–4 (citing

(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

2 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

(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

1 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,

(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,”

This claim is not revived in the pending second motion. 2 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)).

3 determination.” United States v. Lee, 19-cr-298 (KBJ),

, 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.”

(i); see Lee,

, at *3;

United States v. Armstead, Nos. 19-cr-00369 (APM), 18-cr-00357 (APM),

, 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.”

(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,

, at *3 (alteration in original) (internal quotation marks omitted) (quoting

United States v. Stephens, No. 15-cr-95,

, 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

(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,”

(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

4 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;

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),

(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,

, 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.

5 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.

.

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,

, 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,

, at *13; (2) conducting “additional staff training on

the use of the non-touch, infrared thermometers,”

; (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

6 staff receive instruction on the proper disposal of PPE,”

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.”

(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

7 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

3 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.

8 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

9