USA v. Calderon-Valcarcel et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
UNITED STATES OF AMERICA,
v.
LAVON PARKS,
Defendant.
19-CR-87
___________________________________
DECISION AND ORDER
The defendant, Lavon Parks, has been charged in a superseding indictment with
conspiring to possess with intent to distribute and to distribute at least five kilograms of
cocaine, 400 grams of fentanyl, and 100 grams of heroin, in violation of 21 U.S.C. § 846
(Count 1); possessing at least 500 grams of cocaine with the intent to distribute it, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2 (Counts 2 and
3); discharging a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. §§ 924(c)(1)(A)(iii) and 2 (Count 9); and discharging a firearm causing death, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j)(1) and 2 (Count 10). Docket Item 137.
Parks has moved under 18 U.S.C. § 3142(i) to be released temporarily until the
COVID-19 pandemic passes, Docket Item 228; in his reply memorandum, Parks raises
an additional basis for release, changed circumstances, Docket Item 237. The
government opposes both grounds for release. Docket Items 233 and 243. For the
reasons below, Parks’s motion for release is DENIED.
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PROCEDURAL HISTORY
The Court presumes the parties’ familiarity with the procedural history associated
with Lavon Parks’s release and eventual pretrial detention and will not repeat it here.
The details are included in this Court’s December 18, 2019 decision and order revoking
Magistrate Judge McCarthy’s order of release and finding by clear and convincing
evidence that no condition or combination of conditions would reasonably assure the
safety of the community, and by a preponderance of the evidence that no condition or
combination of conditions would reasonably assure the defendant’s appearance as
required. Docket Item 177. On March 5, 2020, the United States Court of Appeals for
the Second Circuit affirmed that decision and order and denied Parks’s motion for
release pending trial.
APPLICABLE LAW
18 U.S.C § 3142(i) provides, in pertinent part:
The judicial officer may, by subsequent order, permit the
temporary release of the person, in the custody of a United
States Marshal or another appropriate person, to the extent
that the judicial officer determines such release to be
necessary for preparation of the person’s defense or for
another compelling reason.
In an April 6, 2020 memorandum to all United States Attorneys, United States Attorney
General William P. Barr instructed prosecutors that in addition to conducting the Bail
Reform Act analysis under 18 U.S.C. § 3142 and applying the factors and presumptions
according to its terms, they also should consider “the medical risks associated with
individuals being remanded into federal custody during the COVID-19 pandemic.” See
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April 6, 2020 Memorandum from the Attorney General, Litigating Pre-Trial Detention
Issues During the COVID-19 Pandemic.
ANALYSIS AND FINDINGS
Coronavirus Disease-2019 (“COVID-19”) Pandemic
On March 7, 2020, the Governor of the State of New York declared a disaster
emergency in the State of New York in response to the COVD-19 pandemic. On March
13, 2020, the President of the United States issued a proclamation declaring a national
emergency in response to the pandemic. As a result, on March 13, 2020, Hon. Frank P.
Geraci, Jr., Chief Judge of the United States District Court for the Western District of
New York, issued an order limiting court operations in the district. In the weeks since
March 13, 2020, Chief Judge Geraci has issued several additional orders further
restricting access to the courthouse, as well as authorizing both civil and criminal
proceedings to be conducted by video or teleconferencing.
In less than four months, 2,101,164 people have been diagnosed with the
disease. See Coronavirus Resource Center, John Hopkins Univ. & Med. (April 16,
2020, 2:28 AM), https://coronavirus.jhy.edu/. 140,773 have died. Id. In the United
States, 629,264 have been diagnosed and 26,708 have died. The Centers for Disease
Control and Prevention (“CDC”) has issued guidance and identified the following people
to be at a greater risk for severe illness from COVID-19: people over the age of 65;
people who live in a nursing home or long-term care facility; and people of all ages with
certain underlying medical conditions, particularly if not well controlled, including those
who have chronic lung disease, moderate to severe asthma, serious heart conditions,
severe obesity, diabetes, chronic kidney disease undergoing dialysis, and chronic liver
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disease, as well as those with conditions causing them to be immunocompromised.
See Centers for Disease Control and Prevention, (April 16, 2020, 2:45 PM),
https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html.
Parks does not allege that he suffers from any condition that would render him a
vulnerable person as defined by the CDC. Rather, Parks urges that the conditions of
confinement at the Niagara County Jail are such that it is “an ideal environment for the
transmission of contagious disease.” Docket Item 228 at 5. Both parties concede that
there do not appear to be any confirmed cases of COVID-19 among the inmate
population at the Niagara County Jail. While that is something that certainly can change
quickly, the Niagara County Jail now appears to be a relatively safe, uncontaminated
environment. Moreover, while incarceration in any prison poses the risks that living in
any facility with many inhabitants poses today, those risks alone do not override the
reasons for detention or incarceration. See, e.g., United States v. Smalls, No. 20-CR-
126-LTS, 2020 WL1866034 (S.D.N.Y. Apr. 14, 2020). 	Therefore, based on the current
record, this Court finds that the COVID-19 pandemic is not a sufficiently compelling
reason to require Parks’s release from pre-trial detention.
Change in Circumstance
In his reply memorandum, Parks suggests that there has been a change in the
weight of the evidence that should cause this Court to revisit its prior order of detention.
In its December 18, 2019 decision and order, this Court described the weight of the
evidence against Parks:
The evidence compiled against Lavon Parks in connection
with the alleged drug crimes is substantial. 	For example,
there 	are 	photographs 	showing 	him 	mailing 	a 	package
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allegedly containing drugs from a post office in Puerto Rico;
the government proffered evidence linking him to controlled
buys; and he was in the car in which drugs were found when
it was stopped in Tennessee.
The evidence linking Lavon Parks to the Turner murder
likewise 	appears 	strong. 	Video 	evidence 	shows 	a 	car
apparently belonging to Lavon Parks’s girlfriend parking on an
adjacent street moments before the shooting took place and
a person physically not unlike Lavon Parks leaving the car and
approaching the place where the shooting occurred moments
before the 	shots 	are heard. 	The 	government 	proffered
evidence that Lavon Parks’s girlfriend lent him her car on the
day and at the time of the shooting. 	Moreover, an individual
identified as Lavon Parks is seen in James Parks’s truck with
two individuals proffered to be drug customers of both Lavon
Parks and the murder victim shortly before the shooting, and
the government proffers that protection of Lavon Parks’s
customer base was a motive for the shooting and that the drug
customers helped set up the shooting by luring the victim to
where the shooting occurred.
In addition, cell phone data places Lavon Parks in the vicinity
of 	the 	shooting 	before, 	during, 	and 	after 	it 	took 	place.
Ballistics from the scene linked the weapon involved in the
shooting to a weapon involved in a non-fatal shooting and
recovered 	two 	weeks 	later 	from 	Andre 	Williams, 	Lavon
Parks’s half-brother. 	And the government has proffered that
the same firearm was trafficked to the Western District of New
York from Pennsylvania by a known associate of Lavon
Parks—an associate who has pleaded guilty to an offense
related 	to 	that 	trafficking 	and 	is 	awaiting 	sentencing 	in
Pennsylvania.
As this Court has noted, the strong evidence against Lavon
Parks on the drug counts made the decision to release him on
conditions a close one. The evidence on the new charges of
murder and discharge of a firearm adds even more weight in
favor of remand.
Docket Item 177 at 17-18.
Parks now argues that there are two reasons why the government’s proffered
evidence is not so strong: 1. the license plate reader evidence provided during
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voluntary discovery shows Parks’s girlfriend’s vehicle in Niagara Falls on January 23,
2018, two days after the homicide, and not on January 21, 2018, the day of the
homicide; and 2. a person who claims to have been present near the scene at the time
of the homicide told the defense investigator that she saw the alleged shooter and did
not recognize or identify him as Lavon Parks.1 See Docket Item 237 at 6.
In its sur-reply, the government maintains that the weight of the evidence linking
Parks to the murder of Kevin Turner remains strong. Indeed, the government argues
that neither the witness’s statement to the defense investigator nor the license-plate-
reader evidence changes the strength of the government’s proof or the weight this Court
should give that proof in assessing the danger Parks poses to the community. 	Docket
Item 243 at 4.
With respect to the new witness upon which the defense relies, the government
observes that in addition to the statement provided to the defense investigator, the
witness provided other inconsistent statements that make her statement to the defense
investigator suspect, to say the least. Moreover, although this witness was known to
the government at the time of the detention hearings and appeals, the government did
not rely on any information supplied by this witness in support of its request to have
Parks detained. Id. at 10. The government therefore argues that the witness’s
statement does not in any way undermine what it has characterized as objective proof
linking Parks to Kevin Turner’s murder. Id.
1 A copy of the witness’s statement has been provided to the Court and filed under seal.
Docket Item 240.
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With respect to the license plate reader, the government notes that the evidence
was offered at the detention hearing for the limited purpose of explaining how
investigators identified the vehicle that appears in the surveillance videos on January
21, 2018—not, as Parks suggests, to establish the location of the vehicle on that date.
For that reason, the government argues, the defendant’s observation about the license
plate reader is of no moment.
As noted above, in its December 18, 2019 decision and order, this Court found
that the weight of the evidence linking Parks to the murder of Kevin Turner was strong.
Despite the new evidence the defendant cites, this Court remains persuaded that the
weight of the evidence linking Parks to the murder of Kevin Turner remains strong.
Accordingly, this Court declines to find that there is good reason to release the
defendant under section 3142(i).
CONCLUSION
For the reasons set forth above, the Court finds that Parks has not demonstrated
a compelling reason under 18 U.S.C. § 3142(i) to warrant his temporary release from
custody. Therefore, Parks’s motion for release, Docket Item 228, is DENIED.
SO ORDERED.
Dated: 	April 17, 2020
Buffalo, New York
s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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