MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
On May
22, 2018, Defendant Tiffany Henry, through counsel, filed her
[65] Motion to Amend Conditions of Release (“Def.'s
Mot.”), requesting that she be placed into the High
Intensity Supervision Program (“HISP”) and
permitted to live in an apartment pending any trial in this
case. In its opposition, the Government emphasized that Ms.
Henry's release from the monitored setting of the halfway
house into the HISP would create a number of further
opportunities for Ms. Henry to engage in the drug activity
for which she has been indicted, undermining the safety of
the community. See Gov.'s Opp'n to
Def.'s Mot. to Amend Conditions of Release, ECF No. 66
(“Gov.'s Opp'n”), at 4-7. Most of the
further briefing permitted or ordered by the Court focused on
Ms. Henry's health concerns with continued residence in
the halfway house. See, e.g., Min. Orders of May 30,
2018, and June 4, 2018. Upon consideration of the briefing,
[1] the
relevant legal authorities, and the record as a whole, Ms.
Henry's [65] Motion is DENIED.
On
November 13, 2017, Ms. Henry was charged in a five-count
Indictment with: Conspiracy to Distribute and Possess with
Intent to Distribute Marijuana and Cocaine (Count One);
Unlawful Use of a Communication Facility (Count Two);
Unlawful Distribution of Marijuana (Count Three); Unlawful
Possession with Intent to Distribute Marijuana (Count Four);
and Unlawful Possession with Intent to Distribute Cocaine
(Count Five). Subsequent to the indictment, Magistrate Judge
G. Michael Harvey issued an arrest warrant for Ms. Henry.
Ms.
Henry appeared in court before Magistrate Judge Harvey, on
November 15, 2017, for her initial appearance and
arraignment, and she entered a plea of not guilty on all
charges. The Government made an oral motion for pretrial
detention and Magistrate Judge Harvey scheduled a November
20, 2017, detention hearing in response thereto. At the
conclusion of the November 20, 2017, detention hearing,
Magistrate Judge Harvey denied the Government's motion
for detention and released Ms. Henry to a halfway house. The
Government appealed that ruling, and on November 30, 2017,
this Court held a hearing on the issue of whether Ms. Henry
should be released or detained pending trial. The Court
determined that Ms. Henry could be released pending trial but
that such release would be made subject to the following
conditions:
that she be released into a work release/halfway house; that
she have no social passes, including that she not possess a
passport; that she stay away from the apartment she leased;
that she report to PSA weekly by telephone; that she be
placed in a weekly drug testing program; and that she seek
and maintain employment. Dec. 1, 2017 Mem. Op. and Order, ECF
No. 22, at 2.
On
December 11, 2017, Ms. Henry was transported to and placed in
a halfway house. On December 20, 2017, Ms. Henry moved for a
social pass from the halfway house in order to spend several
days with her family for Christmas. Over the Government's
objection, the Court granted-in-part and denied-in-part Ms.
Henry's request, permitting her release on December 25,
2017, from 9:00 a.m. until no later than 5:00 p.m. In doing
so, the Court found that
Since being placed in the halfway house on December 11, 2017,
Ms. Henry has been compliant with the rules and regulations
of the halfway house; she has reported to PSA by telephone as
required; she has been actively seeking employment; and she
has tested negative for illegal substances at her December
14, 2017 and December 21, 2017 drug tests.
Dec. 22, 2017 Mem. Op., ECF No. 30, at 3. In light of
“Ms. Henry's desire to spend time with her family
during the Christmas holiday, ” the Court made “a
one-time exception to the condition of ‘no
social passes.'” Id. (emphasis added). In
January 2018, the Court denied Ms. Henry's second request
for a social pass, citing the Government's
characterization of that request as an attempted end-run
around the Court's prohibition of social passes. Jan. 26,
2018 Mem. Op., ECF No. 38, at 3-4.
As it
did before, this “Court has every indication that Ms.
Henry remains in compliance with the Court's [19] Release
Order.” Id. Ms. Henry has submitted a series
of letters from her halfway house and employers attesting to
her fine performance under the current release conditions.
See Attachs. to Def.'s Mot., ECF No. 65-1;
Attach. to Def.'s Reply, ECF No. 67-1. But
compliance-even model compliance-with the Court's
requirements is not enough to warrant adjustment of her
pretrial release conditions. Only if there has been a
development in Ms. Henry's situation that would affect
the Court's assessment of the “least
restrictive” conditions of release that “will
reasonably assure . . . the safety of any other person and
the community, ” 18 U.S.C. § 3142(c), could she be
entitled to the adjustment that she requests.
The
Court does not find any evidence that warrants an adjustment
to her pretrial release conditions. The Government is correct
to observe that Ms. Henry's placement into HISP would
create opportunities for her to re-start her alleged
narcotics business. See Gov.'s Opp'n at 4-5.
For example, she could make use of presumably unmonitored
internet access at her apartment to arrange drug
transactions, which could be consummated at her apartment or
in its vicinity. See Id. Monitoring via ankle
bracelet would not detect such a business, nor would her
employers' gracious offer to serve as third-party
custodians, [2] see Id. at 6, nor necessarily
would periodic visits by pretrial services. Accordingly, the
Court finds that release into the HISP would not mitigate the
Court's concerns based on the indictment against Ms.
Henry in this case. She must remain under the supervision of
the halfway house pending trial.
Several
alleged issues at the halfway house have attracted the
Court's further attention, but they are being addressed
and accordingly do not cause the Court to adjust Ms.
Henry's pretrial release conditions for these reasons
either. In particular, Ms. Henry has expressed concerns about
proper observance of her dietary restrictions and about the
sanitary conditions at the halfway house.
Most
concerning is her claim that she became sick to the point of
hospitalization based on food provided by the halfway house.
Def.'s Suppl. Reply at 1.[3] There is not sufficient evidence
to conclude, however, that Ms. Henry's hospitalization on
February 1, 2018, with the diagnoses of nausea, vomiting, and
diarrhea, Attach. to Def.'s Suppl. Reply, ECF No. 69-1,
was in fact attributable to halfway house food. Ms. Henry
evidently had complained to halfway house staff of flu-like
symptoms late in January 2018. Gov.'s Resp. to Def.'s
Suppl. Reply at 2. The halfway house's records from
February 1, 2018, cited her having flu-like symptoms as the
reason for her request to be taken to the hospital.
Gov.'s Notice of Filing, ECF No. 72. Moreover, the
halfway house's records suggest that Ms. Henry did not
eat dinner provided by the halfway house on either January
31, 2018, or February 1, 2018. Gov.'s Resp. to Def.'s
Suppl. Reply at 2. None of the information or documentation
provided by Ms. Henry completes a causal chain linking her
illness to food provided by the halfway house, rather than to
the flu or another cause. Moreover, the halfway house is
unaware of any symptoms of the aforementioned kinds among
other residents on or around February 1, 2018. Id.
at 4. The Court consequently finds that Ms. Henry need not be
reassigned away from the halfway house on the basis of what
appears to be an unrelated hospitalization four months ago
without analogue since then.
Ms.
Henry also alleges that, on some occasions in April and May
2018, she was served food containing gluten, despite having a
gluten intolerance. Def.'s Suppl. Reply at 1-2. In the
course of briefing, the halfway house has developed a plan to
prevent this from happening again. The halfway house already
has reminded the catering company to double check the food
for Ms. Henry. Gov.'s Resp. to Def.'s Suppl. Reply at
4. Going forward, several layers of halfway house staff will
be involved in reviewing Ms. Henry's meals, and she too
will have a role. Id. While the plan is not
foolproof, and Ms. Henry must still take some responsibility
for ensuring that she does not consume gluten, the Court is
satisfied at this time that she need not be reassigned away
from the halfway house on this basis.
Lastly,
Ms. Henry has complained recently of “skin rashes which
she attributes to poor sanitary conditions, including mold
and bed bug and rodent infestations at the halfway
house.” Def.'s Mot. at 3. But see
Def.'s Reply at 1 (clarifying that the insects are
“some other form of biting insects, ” rather than
bed bugs). She does not dispute the Government's claim
that she did not previously raise these issues with the
halfway house. See Gov.'s Suppl. Opp'n at 2
(making claim); Def.'s Suppl. Reply (offering no
rebuttal). Counsel to the Government has personally reviewed
the premises of the halfway house, which did not reveal any
such issues. Id. at 1. The halfway house's
efforts to maintain cleanliness include its employment of
companies that provide daily sanitation services and monthly
preventative treatment for pests. Id. at 1-2. The
pest control company has not reported bed bugs and rodents
during Ms. Henry's residence there. Id. ...