USA v. Jackson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-132-JD
Opinion NO. 2021 DNH 016
Laveneur Jackson
O R D E R
Laveneur Jackson is a pretrial detainee charged with two
firearms offenses, who is being held at the Strafford County
House of Corrections without bail. Jackson objected to
detention initially and then moved for review of the detention
order, but his request for release was denied. His motion for
reconsideration was also denied. Jackson now moves to reopen
the detention hearing, pursuant to 18 U.S.C. § 3142(f)(2)(B),
alleging that new and compelling circumstances caused by the
COVID-19 pandemic support his release. The government objects.
Standard of Review
A court may reopen a detention review hearing based on new
and material evidence. § 3142(f)(2)(B). To support reopening a
hearing, the judicial officer must find “that information exists
that was not known to the movant at the time of the hearing and
that has a material bearing on the issue whether there are
conditions of release that will reasonably assure the appearance
of such person as required and the safety of any other person
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and the community.” Id. Importantly, the new information “must
be of a nature that would increase the likelihood that the
defendant will appear at trial and would show that the defendant
is less likely to pose a danger to the community.” United
States v. Watson, 475 F. App’x 598, 600 (6th Cir. 2012). For
purposes of deciding whether there are conditions of release
that will reasonably assure the appearance of the person and the
safety of any other person and the community, the court
considers any new information about the offense charged, the
weight of the evidence against the person, the history and
characteristics of the person, and the nature and seriousness of
the danger the person poses. 18 U.S.C. § 3142(g).
Background
Jackson is currently charged in a superseding indictment
with two counts of possession of a firearm by a prohibited
person in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2).1
He has pleaded not guilty.
On February 26, 2019, the magistrate judge issued a
detention order finding that that there were no conditions or
combination of conditions of release that would reasonably
1 Two counts of aiding and abetting the making of a material
false statement in connection with the acquisition of a firearm
have been dismissed with prejudice.
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assure Jackson’s appearance or the safety of the community.
Doc. no. 9, at *3. He was ordered detained pending trial. In
December of 2019, Jackson requested a review of his detention,
and the court conducted a de novo review of the record. 18
U.S.C. § 3145(b).
Following the review, on March 12, 2020, the court
concluded, based on the serious nature of the charges against
Jackson, the weight of the evidence, and Jackson’s criminal
history including prior defaults, violations, and violent
crimes, that the government had shown by clear and convincing
evidence that Jackson posed a danger to the community and by a
preponderance of the evidence that Jackson is a flight risk.
Doc. no. 90, at *13. The court also concluded that there was no
condition or combination of conditions that would reasonably
assure Jackson’s appearance at trial and the safety of the
community. Id. Jackson’s request for release was denied.
Jackson moved for reconsideration of that decision,
reiterating arguments he made in his original motion. In
addition, Jackson raised the effects and risks of the COVID-19
pandemic to pretrial detainees. The court denied the motion for
reconsideration. Doc. no. 103. The court incorporates the
previous detention orders into this order.
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At the request of the court in connection with the current
motion, the probation officer prepared a report and
recommendation. The probation officer reports that Jackson
proposes that if he is released he would live at Starting Point
Sober Living in Manchester, New Hampshire, (the same living
arrangement addressed in the March 3, 2020, addendum) and would
work for Michael Bradford, in Billerica, Massachusetts, doing
window installations (the same work arrangement as he proposed
previously).
Over a twelve-month period between November of 2019 and
October of 2020, Jackson incurred four disciplinary write-ups at
the jail. While two of the write-ups were deemed to be “major”,
Jackson provided an explanation of each which can be viewed as a
mitigation of that characterization. The probation officer
determined that Jackson poses a risk of not appearing for trial
if he were released, based on his criminal history, including
his prior failures to appear, defaults, and probation
violations. The probation officer also determined that Jackson
presents a risk of danger to the community if he were released
because of his charged offenses, his substance abuse history,
his repeated drug offenses, his pattern of noncompliance with
probation, his lengthy and serious criminal history, and his
disciplinary write-ups while in jail.
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Jackson became ill this summer and was diagnosed with
abscessed perforated diverticulitis. He underwent surgery and
was hospitalized for three days. He continued to have bouts of
abdominal pain after surgery. He has also had high sodium and
high blood pressure readings.
The government had Jackson’s medical records reviewed by
Dr. J. Gavin Muir, Chief Medical Officer of Amoskeag Health in
Manchester, New Hampshire. The government represents that based
on his review, it is Dr. Muir’s opinion that Jackson’s
diverticulitis and surgery and his high sodium and blood
pressure readings are not relevant to the COVID-19 pandemic.
Dr. Muir noted that Jackson has a BMI of 34.6, and the
government acknowledges that Jackson’s weight could put him at
risk of serious illness if he were infected with COVID-19.
The COVID-19 pandemic is well documented, and there is no
dispute that COVID-19 infection is present in the jail. Based
on testing, the incidence of infection is increasing. The staff
at the jail reported to the probation officer and to counsel for
the government that Jackson is assigned to a unit that had no
cases of COVID-19 as of January 11, 2021.
A video hearing was held on January 14, 2021. Counsel
argued in support of Jackson’s motion, focusing on the spread of
COVID-19 infection in the jail, and arguing, among other things,
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that the seriousness of Jackson’s criminal history has been
overstated. The government argued that Jackson had not met the
requirements to reopen the detention review hearing and that the
relevant circumstances support detention. The court took the
motion under advisement.
Discussion
Jackson moves to reopen the bail review hearing, arguing
that circumstances have changed since the previous order
primarily because of the COVID-19 pandemic, the infection rate
in the jail, and the effect of his current medical conditions in
combination with the risk of COVID-19 infection. He also notes
that two of the four charges against him have been dismissed and
that his criminal history should be viewed in light of the
passage of time and his current age. Counsel for the government
contends that Jackson has not provided grounds to reopen the
detention review hearing, and alternatively, that if reopening
were granted, the new information does not support release.
Jackson previously raised the COVID-19 pandemic as a ground
for release, which was rejected. See doc. no. 103. Neither the
existence of the pandemic nor Jackson’s arguments to mitigate
the seriousness of his criminal history are new information.
However, Jackson’s medical issues that arose this summer, the
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incidence of infection in the jail, and the dismissal of two
charges are new information that was not known at the time of
the court’s review of the detention order.
The effects of the COVID-19 pandemic in a jail and the
potential risk to a detainee, however, do not alone provide
grounds to reopen a review of detention under § 3142(f)(2)(B).
United States v. Bethany, 2020 WL 6731016, at *3 (N.D. Tex. Oct.
16, 2020) (“The existence of the pandemic does not have a
material bearing on the issue of whether there are conditions of
release that will reasonably assure [the defendant’s] appearance
as required and the safety of any other person and the
community.”). Instead, new information must demonstrate that
the COVID-19 pandemic has had a material effect on whether
conditions of release could reasonably assure the appearance of
the defendant as required and the safety of any other person and
the community. United States v. Grant, 2020 WL 7640873, at *3,
n.5 (D. Colo. Dec. 23, 2020); United States v. Sheridan, 2020 WL
7416913, at *2 (N.D. Ohio Dec. 18, 2020); United States v.
Abari, 2020 WL 5877607, at *2-*3 (D. Minn. Oct. 2, 2020); United
States v. Fields, 2020 WL 5250706, at *3 (S.D. Ohio Sept. 3,
2020); United States v. Blackstone, 2020 WL 4784777, at *2 (D.
Md. Aug. 18, 2020).
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Similarly, to support reopening based on the dismissal of
two of the four charges against him, Jackson must show that the
dismissal has a material effect on whether conditions of release
could reasonably assure his appearance and the safety of the
community. § 3142(f)(2)(B); see also United States v. Jackson,
2020 WL 6550505, at *1-*2 (E.D. Tenn. Nov. 5, 2020). In other
words, Jackson must show that dismissal of the aiding and
abetting charges materially changes the circumstances pertaining
to flight risk and dangerousness. See id.
The court previously found that the government had
sustained its burden of showing that no conditions of release
could reasonably assure Jackson’s appearance as required and the
safety of any other person and the community. Docs. 90 and 103.
Jackson has shown that since those decisions issued the COVID-19
virus has infected staff and inmates at the jail and that he has
new medical conditions.2 He has not provided evidence that the
pandemic or the pandemic in combination with his medical
conditions would have a material effect on whether conditions of
release could reasonably assure his appearance as required and
the safety of any other person and the community.
2 Based on the government’s proffer, only Jackson’s BMI, not
his new medical conditions, would potentially pose a risk in
combination with the COVID-19 virus.
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Jackson also has not shown that dismissal of the aiding and
abetting charges changes the detention analysis. He is still
charged with two counts of possession of a firearm by a
prohibited person. Those are serious charges, and the other
circumstances that pertain to detention remain the same.
Therefore, Jackson has not provided grounds, as required
under § 3142(f)(2)(B), to reopen the detention review hearing.
Conclusion
For the foregoing reasons, the defendant’s motion to reopen
the detention review hearing (document no. 145) is denied.
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
January 22, 2021
cc: Counsel of record.
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