Case 1:19-cr-00258-KBJ Document 100 Filed 04/10/20 Page 1 of 21

UNITED STATES DISTRICT COURT

)
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
1
The obvious

increased risk of harm that the COVID-19 pandemic poses to individuals who have been

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

t that

1
Compare 41 DC Inmates Have Tested Positive for Coronavirus, NBC Wash. (Apr. 9, 2020),
https://perma.cc/TH8M-
with United States v. Davis,
No. 19-cr-
 Case 1:19-cr-00258-KBJ Document 100 Filed 04/10/20 Page 2 of 21

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

Motion For A Hearing To Address The Impact Of The COVID-19 Pandemic On The

See

f the COVID-19

pandemic, and its effects on our communities, including the jail community, constitutes

at 11.) For its part, the government

acknowledges the dangers of COVID-

consideration of whether there were any conditions that could ensure the safety of

people in the community if Wiggins was released pretrial. ( See generally

see also

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 -

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of his arrest. (See at 7 8 (incorporating by reference the go

prior arguments for pretrial detention under 18 U.S.C. §

Pretrial Detention, ECF No. 18 at 18)).)

Notably, while this Court previously indicated that its decision regarding

whether or not Wiggins should be detained

limited criminal history and significant family ties ( see

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-

Therefore, even if the Court assumes that COVID-

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 prerequ

under section 3145(c) to release convicted defendants who have been mandatorily

DENIED.

I.

In December of 2017, the Federal Bureau of I

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 -trafficking

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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

hen 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 transact ion, and Weaver then asked Wiggins to

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

e. (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

residence, during which they uncovered multiple firearm magazines and ammunition, a

digital scale, a telephone, and a large amount of cash. ( See or Pretrial

Detention 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.

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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

the Magistrate Judge s

for Weaver. (See

decision to release Wiggins under high-intensity supervision (see Minute Entry of Aug.

6, 2019), and this Court held

August 13, 2019 (see Minute Entry of Aug. 13, 2019). Upon consideration of the

enough to rebut the statutory presumption in favor of detention that is based on the

conditions of release, including HISP, will reasonably assure the safety of the

In particular, the Court noted that the

-time high-

favor of his release. (Id. at 11.) Moreover, the Court found that the weight of the

id.), as well as vidence that place[d] [Wiggins] in the proximity of

id. at 12). Additionally,

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community, and lack of criminal history . . id. at 13), it

id. at 14), as well as evidence that Wiggins

(id.

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

-19 pandemic, and its

According to

appropriate for Mr. Wiggins to be released to home detention until the resolution of this

[COVID- id. at 2), and that he should be placed on high intensity

supervision in the cust id. at 12), because

circumstances id. at 13).

his arguments rely on both the Bail Reform Act, which applies to pretrial detainees, and

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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,

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.

in accordance with

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,

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

conditions will reasonably assure the appearance of the person as required and the

3142(e)(1). That statute

further prescribes that, to make this determination, a court must evaluate four factors in

the first instance: (1) (2)

(3)

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defendant; and (4)

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

reasonably assure the appearance of the person as requi red and the safety of any other

Id. § 3142(e)(1); see also United States v. Vasquez-

Benitez
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

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 years or more a rebuttable presumption of
dangerousness arises, 18 U.S.C. § 3142(e)(2) 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 is a substantial likelihood that a motion for

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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 p

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

would not be appropriate.

Id. §

cond

acquittal or new trial will be granted or an attorney for the Government has recommended that no
sentence of imprisonment be imposed on the person and also 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).

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thi

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

there are exceptional reasons why [his] detention would Id.

§ 3145(c).

Before the Court addresses that analysis, three other points are worth noting.

authority to release defendants under section 314 5(c) (see 5) is

mistaken. That is, the Court agrees with Wiggins (see 3) that the

plain text of section 3145(c) establishes that a district judge who has jurisdiction over a

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 t he 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 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 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
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
U.S.C. § 3143(a)(2).

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defendant released. See 18 U.S.C. §

3141

authorized . . . to detain or release a person before trial or sentencing or pending appeal

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

evaluate the record facts in light of the four dangerousness and flight-risk factors that

5
T 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 provisi . But Congress
enacted this part of section 3145(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 sections 3143(a)(2) or (b)(2) to be permitted
to remain out of jail pending sentencing under exceptional cir cumstances, see Letter from Carol T.

(July 26, 1989) a type of judgment call that is ordinarily in the purview of the district judge who is
presiding over he 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
provision that was eventually enacted
uses [,] see 18 U.S.C. § 3145(c).

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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

conditions of release that will reasonably assure the appearance of the person as

required and the safety of any other person and the comm 3142(b) and

(c) are provided in § 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 ndant subject to § 3143

poses a risk of flight or danger, the court may consider the factors set forth in

§ 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 r

United States v. Garcia, 340 F.3d 1013,

1016 17 (9th Cir. 2003), and, unfortunate

DiSomma, 951 F.2d at 497. Congress did not define the term

have laid out their own standards. See, e.g., Garcia, 340 F.3d at 1018 (explaining that,

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

United States v. Larue, 478 F.3d

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court to consider all the particular circumstances of the case before it and draw upon its

broad experience with th Garcia, 340 F.3d at 1018

(internal quotation marks and citation omitted). And to the extent that Congress

detention would not be appropr 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)

-19 pandemic has any material impact on

the section 3142(g) factors that led [the Magistrate Judge] to determine that pretrial

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

.. 3145(c). This is primarily because, as explained above,

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detention order, this Court already specifically

a danger to the safety of the community, pursuant to 18 U.S.C. § 3142(g). Thus, it

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 d ifferent conclusion about his

dangerousness than this Court reached before. Cf. id. § 3142(f). For the reasons

is a little

pled guilty to a less serious crime from a sentencing standpoint ( see

(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

in inherently dangerous criminal conduct plainly weighs in favor of his conti nued

detention for the purpose of 18 U.S.C. § 3142(g)(1).

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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 co -of-the-

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

ommunity . . . to the exclusion of any consideration of

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

t uage does not focus on the evidence of danger to the

community . .

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,

§ ng ties to

11). This Court previously credited these

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characteristics; yet, it determined nevertheless that they were insufficient to ti p the

See

nature of the offense and the weight of the evidence against Mr. Wiggins as far as drug

-19 appears to have no impact on this equation

under the circumstances presented here. Wiggins has not demonstrated, for example,

Lee, 2020 WL 1541049, at *6, which might reasonably cause a court to

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

including albuterol and prednisone, a corticosteroid that is an anti -inflammatory and

ense has not provided the Court with any basis for

concluding that this third factor should be afforded any greater weight now than the

ourth and final factor, and

3142(g)(4), now weigh

is the incarceration that is

dangerous in the context of the COVID-

house arrest until the global pandemic abates will actually enhance the safety of the

e credited consistent with

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the statutory framework for the reasons that this Court recently explained in Lee. For

relevant statutory inquiry is not the benefits that

about (however significant) or the harms that his incarceration would cause (however

substantial) . . the danger 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.

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

ID-19 includes the heightened

Lee, 2020 WL

1541049, at *5.

In short, and unfortunately for Wiggins, even if the COVID-19 pandemic rises to

U.S.C. § 3145(c), and for the reasons

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dangerousness leads to a different result today, such that he

see id.

§§ 3143(a)(1), 3145(c).

IV.

section 3145(c) is all that is required to resolve the pending emergency motion for

release. Although Wiggins also appears to request release under 18 U.S.C. § 3142(i)

(see 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

lies to pretrial see

also United States v. McDuffie, No. 19-cr-212, 2020 WL 1659879, at *1 (S.D.N.Y. Apr.

§ 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

sent

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

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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(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 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,

).

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

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,

defendant the exception in section 3142(i) would

; 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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).

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 unfortunately presently

detained in federal custody. The conditions of d etention within the District of

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 c ontracting the virus. In 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 cryst

the moment . . . call for more systematic action than a judge can grant in any one

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 the 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 conduct.

This Court previously and carefully determined that no condition s 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

ess. Under these

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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

21