Maryland Cases May 04, 2020: United States v. Mason

Case Description

Rachel Yasser, Office of the United States Attorney, Baltimore, MD, for United States of America.

ORDER

Timothy J. Sullivan, United States Magistrate Judge

Pending before the Court is the "Emergency Motion for Reconsideration of the Detention Order Based on Changed Circumstances" ("Motion") (ECF No. 50) filed by Defendant Duane Mason ("Mr. Mason"). Having considered the submissions of the parties (ECF Nos. 50, 51, 53 & 54), the Court concludes that no hearing is necessary. See Loc. R. 105.6. For the following reasons, the Motion will be granted.

Mr. Mason is in custody at the Correctional Treatment Facility ("CTF") pending a hearing on two petitions filed by the United States Probation Office ("Probation") alleging violations of his supervised release conditions.

On August 15, 2011, Judge Deborah K. Chasanow sentenced Mr. Mason to 120 months in the Bureau of Prisons to be followed by 120 months of supervised release after his guilty plea to the offense of

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sex trafficking of a minor in violation of 18 U.S.C. § 1591(a). (ECF Nos. 24 & 25.) Probation commenced supervision of Mr. Mason on June 27, 2019. On September 5, 2019, the first petition was filed alleging seven violations of supervised release. Most of the alleged violations stemmed from Mr. Mason's arrest on September 4, 2019, in Frederick County, Maryland. Mr. Mason's arrest resulted in state criminal charges including four felony offenses and three misdemeanors. (ECF No. 33.) On September 6, 2019, Judge Chasanow issued an arrest warrant for Mr. Mason. (ECF No. 34.) On September 17, 2019, the second petition was filed alleging two violations of supervised release related to a positive urinalysis and failure to attend substance abuse testing and group treatment. (ECF No. 35.) On October 4, 2019, Mr. Mason was arrested. (ECF No. 37.) On the same date, Mr. Mason appeared for his initial appearance before Chief Magistrate Judge Beth P. Gesner and an Order of Temporary Detention was entered. (ECF Nos. 36 & 40.) On October 7, 2019, a detention hearing was held before the undersigned and Mr. Mason was detained. (ECF No. 41.) On October 8, 2019, an Order of Detention was entered. (ECF No. 42.) On October 9, 2019, a bail review hearing was held, and Mr. Mason remained detained. (ECF No. 43.) Mr. Mason's pending state charges have now been scheduled for trial on July 13, 2020. No hearing has been scheduled before Judge Chasanow.

Mr. Mason seeks release from CTF because of the COVID-19 pandemic and the conditions that exist in that institution. He proposes that he be released to reside with his mother in Capitol Heights, Maryland. There is no indication that Mr. Mason has any health condition that makes him more susceptible to contracting COVID-19 or more vulnerable to experiencing complications if he is infected with the disease. The government opposes Mr. Mason's Motion. (ECF No. 51.)

Federal Rule of Criminal Procedure 32.1(a)(6) provides that when deciding whether to detain a person charged with a violation of supervised release, "[t]he magistrate judge may release or detain the person under 18 U.S.C. § 3143(a)(1) pending further proceedings." See also Fed. R. Crim. P. 46(d) (" Rule 32.1(a)(6) governs release pending a hearing on a violation of probation or supervised release."). Under 18 U.S.C. § 3143(a)(1), a defendant must be detained "unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c)." The defendant bears the burden to establish by clear and convincing

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evidence that he will not flee or pose a danger to any other person or to the community. Fed. R. Crim. P. 32.1(a)(6).

At the time of Mr. Mason's previous detention hearings in early October 2019, neither the Court nor the parties were familiar with COVID-19. In the months since those hearings, millions of people have become infected with COVID-19 and hundreds of thousands have died. The virus is highly contagious and the disease is highly fatal. See United States v. Lee , No. ELH-19-0159, 2020 WL 1974881, at *6 (D. Md. Apr. 24, 2020). And pertinent to this case, a large number of inmates and staff at both the D.C. Jail and CTF have tested positive for COVID-19. As Judge Hollander recently noted, correctional facilities "are in general ill-suited to prevent outbreaks and mitigate their spread." Id. at *7. Indeed, as of May 3, 2020, the D.C. government reported that there were 152 detainees who have tested positive (52 in isolation and 96 recovered); 808 detainees who are currently under quarantine; and one pretrial detainee had died from the virus. See Public Safety Agency COVID-19 Case Data , GOV'T OF D.C. , https://bit.ly/2yGcGat (last visited May 4, 2020).

Since Mr. Mason's Motion was filed, the conditions at the D.C. Jail and CTF have been thoroughly considered by another court in a different case and a temporary restraining order has been issued. See Banks v. Booth , No. 20-849 (CKK), 2020 WL 1914896, at *11 (D.D.C. Apr. 19, 2020). In that case, Judge Kollar-Kotelly concluded that the D.C. Department of Corrections must take additional steps in regard to the COVID-19 pandemic. The ruling and the briefs submitted in that case highlight the immense pressure the D.C. Department of Corrections is under to formulate an adequate response to COVID-19 inside the D.C. Jail and CTF.

Mr. Mason's alleged violations of supervised release are serious. In addition, it is concerning that he violated his conditions so soon after being released from the Bureau of Prisons. The nature of his alleged violations and their timing suggests that Mr. Mason is a poor candidate for release. He has demonstrated an inability and unwillingness to comply with judicial supervision. In addition, his charges in the pending state case and his underlying conviction in this case suggest that he poses a danger to the community.

The Court has little sympathy for Mr. Mason's current incarceration. His extensive and serious criminal history coupled with his non-compliance with supervised release suggest that prison is an appropriate place for him. Nonetheless, the Court finds that he must be released for four reasons. First, because the virus that causes COVID-19 is so contagious, it is imperative that D.C. Jail and CTF take all reasonable steps to prevent its spread within the jails. One of the obstacles that the D.C. Department of Corrections faces in combating the spread of COVID-19 is the inmate population of its facilities. If the inmate population of those facilities is reduced, the D.C. Department of Corrections will be better able to manage its response to the pandemic. In addition to improving the conditions at D.C. Jail or CTF, the release of even one inmate from those facilities stands to make the community (which includes the staff who work at those institutions) safer. Second, the state felony charges pending against Mr. Mason during the detention and review hearings have been entered nolle prosequi. Mr. Mason now only faces misdemeanor charges when he goes to trial in July. The offenses may still be serious but the penalties he faces if convicted are less severe. Third,

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Mr. Mason has been in federal custody since October 4, 2019, which is seven months to the day of this Order. Fourth, Mr. Mason has submitted a release plan that, with the Court's modification, will reasonably assure the safety of the community and Mr. Mason's appearance at future proceedings.

Given the unique circumstances of the COVID-19 pandemic, the fact that the most serious of Mr. Mason's state charges have been dropped, the length of time that Mr. Mason has been imprisoned to date, and the adequacy of Mr. Mason's release plan, the Court finds there are now conditions of release that can be imposed that will reasonably assure that Mr. Mason will not flee or pose a danger to any other persons or the community.

After an informal telephone conference with all counsel and the Court, Mr. Mason proposed a specific release plan. (ECF No. 53.) That release plan will be accepted by the Court, with some significant modifications.

First, Mr. Mason's two sisters (Kimberly Robinson, and Kelly Williams) and his mother (Esther Mason, who is 86 years old) will be his third-party custodians. Probation has explained the importance of this role to Mr. Mason's family members. The Court believes that they understand what is expected of them. After he is released from community confinement, Mr. Mason will reside with his mother, but his two sisters will assist in ensuring that he complies with his conditions of release. Mr. Mason's family will provide him with one smartphone so that Probation can monitor him while on release.

Second, thanks to the hard work and diligence of Probation, Mr. Mason will spend the first 14 days of his release in a community confinement center. Although Mr. Mason has screened negative for any COVID-19 symptoms, this period of confinement in a halfway house will help Mr. Mason transition back to life in the community and will ensure that he does not expose his elderly mother to a disease that could be fatal. Provided Mr. Mason complies will all conditions of release during his first 14 days at the community confinement center, the Court will permit him to move his residence to his mother's house. He will then be permitted to remain at his mother's house until his violation of supervised release hearing.

Mr. Mason must understand that he is the (perhaps undeserving) beneficiary of the Court's efforts to reduce the inmate population at CTF during these unique times. In a non-COVID-19 pandemic environment, Mr. Mason would remain at CTF. The Court will not hesitate to put him back at CTF if he does not strictly comply with the conditions of release.

For these reasons, Mr. Mason's Motion (ECF No. 50) is GRANTED , subject to

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the conditions of release filed contemporaneously with this Order.