Matthew A. Stinnett, United States Magistrate Judge

David C. Kiebler, AUSA, U.S. Attorney's Office, Lexington, KY, for Plaintiff.

DETENTION ORDER

Matthew A. Stinnett, United States Magistrate Judge Defendant Josh Gregory Taylor ("Taylor") is charged with the possession and distribution of fentanyl in violation of 21 U.S.C. § 841. [DE 1]. The Court conducted a detention hearing in this matter on March 20, 2020. [DE 17]. The Court previously found that the United States had a right to the hearing pursuant to 18 U.S.C. § 3142(f)(1)(C). [DE 7]. At the hearing, the United States sought Taylor's detention based on risk of nonappearance and danger. The Court afforded Taylor and the United States all procedural rights provided by the Bail Reform Act ("BRA"). Per Federal Rule of Appellate Procedure 9(a), for the reasons described in this Order, the BRA requires Taylor's detention.

Because of the charged offense, the BRA imposes a presumption of detention as to both nonappearance and danger. 18 U.S.C. § 3142(e)(3)(A). The Court assesses the presumption under the BRA and United States v. Stone , 608 F.3d 939, 945-46 (6th Cir. 2010). See also United States v. Dominguez , 783 F.2d 702, 707 (7th Cir. 1986) (imposing burden of production on defendant to produce "some evidence that he will not flee or endanger the community if released" in face of presumption); United States v. Hernandez , No. 1:02-CR-006, 2002 WL 1377911, at *2 (E.D. Tenn. Feb. 27, 2002) (crafting production burden as "the burden of producing probative, credible evidence to rebut the presumption and support his [defendant's] contention that he will appear ... and he does not pose a danger"). This is only a production burden, and it is "not heavy." See Stone , 608 F.3d at 945 (noting duty to "introduce at least some evidence"). An unrebutted presumption requires detention. A rebutted presumption remains a pro-detention statutory factor. See id.

Where the presumption is met, the burden then shifts back to the United States. Detention, based on danger, must rest on facts supported by clear and convincing evidence. 18 U.S.C. § 3142(f). A flight-based (or nonappearance-based) detention decision must rest on facts supported by a preponderance of the evidence. United States v. Patriarca , 948 F.2d 789, 793 (1st Cir. 1991) ; United States v. Curry , No. 6:06-82-DCR, 2006 WL 2037406, at *6 (E.D. Ky. Jul. 18, 2006). The analyses are distinct, and conditions that could adequately address flight will not necessarily mitigate danger to a sufficient degree. See United States v. Mercedes , 254 F.3d 433, 436-37 (2d Cir. 2001). Further, almost any conditional release ultimately depends on a court's assessment of a defendant's good faith intentions and predicted compliance with conditions imposed. See United States v. Tortora , 922 F.2d 880, 887 (1st Cir. 1990) (evaluating predicted good faith compliance as critical release component). In the end, any detention decision ultimately turns on the efficacy of potential conditions, which in turn hinges substantially on predicted compliance by a defendant. United States v. Hir , 517 F.3d 1081, 1092 (9th Cir. 2008) (noting "critical flaw" in set of proposed, strict release conditions: "In order to be effective, they depend on [the defendant's] good faith compliance."); id. at 1093 n.13 (stating that any set of conditions except a " ‘replica detention facilit[y]’ " necessarily would "hinge on [the defendant's] good faith compliance").

I. ANALYSIS

The parties took advantage of the inapplicability of the Rules of Evidence to a detention hearing. The Court accepts for consideration all information because of the hearing's informality. The quality and nature of proof impacts probativeness, however, and inclusion at the detention hearing does not make all information equally persuasive to the Court.

Section 3142(g) factors drive the overall analysis. The Court focused initially on whether Taylor was able to meet his presumption burden. The Court then focused on whether the United States proved the requirements for detention. The Court finds, based on a full analysis of the record and the mandatory factors under the BRA, that the detention of Taylor is warranted.

A. RISK OF FLIGHT

Under the relevant standards discussed above, the Court finds that Taylor offered sufficient, credible evidence to rebut the presumption as to risk of flight. Taylor's counsel explained that Taylor, if released, could stay with his cousin who lives in Lexington with the cousin's wife and two minor children. [DE 17, Recording at 2:30-4:00]. Taylor also agreed to submit to substance use disorder treatment and drug testing. In combination with his lifelong residence in Lexington, Kentucky and his strong family ties to the area, this information was enough to meet Taylor's burden of production. United States v. Hernandez , No. 1:02-CR-006, 2002 WL 1377911, at *2 (E.D. Tenn. Feb. 27, 2002) (requiring "probative, credible evidence to rebut the presumption").

With Taylor having met the initial burden of production to overcome his presumption, the Court turns to the United States. The United States pointed to several facts which indicate Taylor is a flight risk or poses a risk of non-appearance. Based on his criminal record, Taylor is facing substantial consequences if convicted of the instant offenses. United States v. Perez , 2017 WL 1457949 at *6 (9th Cir. April 21, 2017) (considering large prison sentences as a factor that "weighs heavily in favor of detention"). See 18 U.S.C. § 841(a). Taylor has a serious history of drug abuse. [Pretrial Services Report at 3]. United States v. Valentin-Cintron , 656 F. Supp. 2d 292, 296 (D. P.R. 2009) ("As a frequent drug user defendant constitutes a ‘flight risk.’ ") (citing THE FEDERAL BAIL AND DETENTION HANDBOOK and S. REP. NO. 225, 98th Cong. 1st Sess. 23, nn. 66, 68 (1983)). He has recently lost his job with only a vague suggestion that he believes another job is waiting for him if released. United States v. Stidham , No. 3:10-CR-79, 2010 WL 2639925, at *3 (E.D. Tenn. June 25, 2010) (finding that a defendant's long unemployment favors detention). Taylor's criminal history, while dated, also includes a failure to appear and a charge of attempt to tamper with physical evidence. [Pretrial Services Report, at 4-7].

Although offering enough to overcome the initial burden of production, the United States countered with numerous pro-flight factors. The Court finds that the United States proved Taylor is a flight risk by a preponderance of the evidence. As a result, the BRA mandates detention.

B. RISK OF DANGER

Taylor relied on the abovementioned points concerning his risk of flight to overcome his presumption that he was a danger to the community. Taylor did not present any additional information specifically to refute the possible danger presented if he is released. The Court finds that without more, Taylor did not meet his burden of production to rebut the presumption as to danger. Because he did not overcome the presumption as to danger and because the Court has determined there are no conditions which would assure his appearance at future Court appearances, Taylor must be detained. Out of an abundance of caution and in the interest of thoroughness, however, the Court will analyze each 3142(g) factor briefly below.

The first factor to consider is the "nature and circumstances of the offense charged, including whether the offense [...] involves a [...] controlled substance[.]" 18 U.S.C. § 3142(g)(1). Taylor is accused of distributing a controlled substance, an offense Congress has set apart as so dangerous to require presumptions of detention. "The presumption in favor of detention does not vanish simply because a defendant comes forward with evidence to rebut it. Were the presumption to vanish, ‘courts would be giving too little deference to Congress' findings regarding this class.’ " United States v. Lattner , 23 Fed. App'x. 363, 364, (6th Cir. 2001) (citing United States v. Martir , 782 F.2d 1141, 1144 (2d. Cir. 1986). Taylor is accused of distribution of fentanyl, an exceptionally dangerous drug. It is beyond dispute that distributing narcotics is a serious offense that poses dire health risks to the community—and the risks associated with fentanyl specifically are even greater. This factor weighs heavily in favor of detention.

The second factor concerns the "weight of the evidence against the person." 18 U.S.C. § 3142(g)(2). "This factor goes to the weight of evidence of dangerousness, not the weight of the evidence of defendant's guilt." United States v. Stone , 608 F.3d 939, 948 (6th Cir. 2010). Stated another way, "the § 3142(g) analysis is concerned with a practical assessment of the defendant's dangerousness, rather than an adjudication of guilt for a particular offense." United States v. Tolbert , 2017 WL 6003075, at *5 (E.D. Tenn. Dec. 4, 2017) (citing Stone , 608 F.3d at 948 ). In addition to the dangerous nature of the current charge, Taylor's criminal history shows that he has repeatedly engaged in dangerous and harmful conduct. From terroristic threatening (albeit very dated) to multiple prior convictions for trafficking in controlled substances, Taylor has repeatedly and often engaged in dangerous behavior the BRA has specifically identified as a true menace to the community. And now, this repeated behavior has led to a possible overdose death. United States v. Holden , No. 17-CR-33-JMH-1, 2017 WL 1362684, at *2 (E.D. Ky. Apr. 12, 2017) (mentioning that the dangers associated with drug trafficking "leading to near fatal overdoses cannot be understated"). The United States presented little evidence detailing the possible overdose death [DE 17, Recording at 6:30-8:00], but, even putting that aside, Taylor's long-history of engaging in such drug activity added to the instant charges establishes that the weight of the evidence of his dangerousness is heavy.

The third factor, the "history and characteristics of the person," considers a host of issues. 18 U.S.C. § 3142(g)(3). Taylor's criminal history showcases over 20 years of narcotic and trafficking related offenses. [Pretrial Services Report, at 4-7]. He is unemployed and currently homeless. And while Taylor has long-standing relationships in this community, those have not deterred him from a consistent pattern of crime. Moreover, Taylor has a substantial daily substance use disorder for heroin that has haunted him for more than six years. Accordingly, this factor weighs in favor of detention.

The final factor to consider is "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). As already discussed, Taylor's criminal history is troubling coupled with his current charges for distribution of fentanyl. In drafting the BRA, Congress determined that "drug offenders pose a special risk of flight and dangerousness to society." United States v. Hare , 873 F.2d 796, 798-99 (5th Cir. 1989). Specifically, "the risk of continued narcotics trafficking on bail constitutes a risk to the community." Id. Taylor's lengthy criminal history, including several prior drug crimes, indicates he is unable or unwilling to reform his behavior. This failure to reform makes Taylor a danger to himself and others.

The Court not only holds that Taylor failed to overcome the presumption as to dangerousness, but, based upon an examination of the relevant factors discussed above, the United States has established by clear and convincing evidence that Taylor is a danger to another person or to the community. Thus, Taylor must be detained.

The Court, however, wishes to address an argument defense counsel raised that does not fit neatly within the factors listed in the BRA. At the time of this opinion, over 362,000 people around the world are diagnosed with COVID-19, the wide-spread pandemic also known as the coronavirus. Over 40,000 of those diagnosis, along with 479 confirmed deaths, are in the United States. Federal and state governments are ordering temporary closures of public places, businesses, and restricting social gatherings in an attempt to mitigate the spread of the infectious disease. Currently, the best preventative measure one can take to avoid the virus is to remain self-quarantined and practice "social distancing" or "physical distancing." The World Health Organization warns that while any person can be infected, "[o]lder people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease ) appear to be more vulnerable to becoming severely ill with the virus." The Court is aware of the pandemic and takes the issue seriously.

Taylor argues his detention would jeopardize his health because of this pandemic. First and foremost, the BRA and its factors do not provide for any such consideration. For example, the factor set forth in 3142(g)(4) focuses on "the nature and seriousness of the danger to any person or the community that would be posed by the person's release ," not the danger to the defendant upon his detention. [Emphasis added]. The factor set forth in 3142(g)(3(A) focuses on a defendant's personal characteristics, including his health. There is no indication that Taylor is of poor health or even in the class of individuals the Centers for Disease Control or World Health Organization has suggested are at a higher risk.

Looking past the BRA's limited factors, Taylor does not make a strong case that the detention centers are incapable of safely preventing and/or treating infectious disease in their facilities. Detention centers are implementing health organizations recommendations for preventing the spread of the coronavirus. While usually the close confinement of a detention facility may increase general risk of contracting disease, the Court has every reason to believe any facility Taylor may be transported to "is implementing precautionary and monitoring practices sufficient to protect detainees from exposure to the COVID-19 virus." United States v. Martin , 447 F.Supp.3d 399, 403–04 (D. Md. Mar. 17, 2020). See also United States v. Hamilton , 19-CR-54, 2020 WL 1323036 (E.D.N.Y. March 20, 2020) ; United States v. Gileno , No. 3:19-cr-161-VAB-1, 2020 WL 1307108 (D. Conn. March 19, 2020) ("[A]t this time the Court cannot assume that the Bureau of Prisons will be unable to manage the outbreak or adequately treat Mr. Gileno should it emerge at his correctional facility while he is still incarcerated"); Joseph A. Bick, INFECTION CONTROL IN JAILS AND PRISONS , 45 Clinical Infectious Diseases 8, 1047-1055 (2007) (discussing detention facilities methods of infection-control). Thus, there is little reason to believe that Taylor would be more at risk if detained versus being released.

Overall, the Court finds that the BRA pre-trial detention factors are not all encompassing; they are utilized to determine a defendant's risk of flight and dangerousness, and situations such as a global pandemic do not easily fit within its parameters. Taylor fails to show any actual or substantial increase in harm outside of what every American citizen is currently experiencing during these trying times. The Court rejects Taylor's speculative argument that the dangerous nature of the COVID-19 pandemic supersedes those risks showcased by a BRA analysis. II. CONCLUSION

For the stated reasons, the Court finds that the United States proved that Taylor is an irremediable flight risk based on facts supported by a preponderance of the evidence, and an irremediable danger risk based on facts supported by clear and convincing evidence. Therefore, the Bail Reform Act mandates detention. The Court has assessed the record, contemplated the risks, evaluated conditions, and determined that there exist no conditions that will reasonably assure that Taylor will appear in court and will not be a danger to the community. Accordingly, the Court GRANTS the United States' oral motion for detention and DETAINS Josh Gregory Taylor.

The parties may appeal this Order under the terms of 18 U.S.C. § 3145(a).

Entered this the 26th day of March, 2020.

Signed By: