Men facing gun, drug charges released from pre-trial custody because their asthma might make them susceptible to Covid-19 complications

A federal judge today released two men being held in custody pending their trials because their moderate to severe asthma might cause them complications should they contract Covid-19 behind bars. Another pre-trial detainee with no underlying conditions, however, will have to remain locked up - in part because he has no underlying health issues and he's a high flight risk.

US District Court Magistrate Judge Jennifer Boal said Xavier Niles-Charles could await his trial on charges of possession of a firearm in furtherance of a drug trafficking crime and receiving a firearm that has been shipped or transported in interstate commerce while under indictment for a crime punishable by imprisonment for a term exceeding one year.

ATF agents and BPD officers arrested Nile-Charles after executing a search warrant at his apartment on Humboldt Court in Roxbury on Sept. 25 - while he was under indictment and awaiting trial in state court on a variety of gun charges, including assault and battery with a dangerous weapon. According to an affidavit by an ATF agent, ATF and BPD found two firearms, one loaded with six bullets and sitting in a clothes hamper next to a magazine loaded with six more rounds.

After an online conference today, Boal agreed to release him on unsecured bond after considering a motion from his lawyer that he's suffered ashtma since he was a child and that his present conditions in a cell at MCI Cedar Junction put him at particular risk of contracting Covid-19:

Mr. Niles-Charles reported that that at MCI Cedar-Junction he can physically reach through the bars and shake hands with the inmates on either side of his cell, to illustrate the proximity he shares with other inmates.

Also, his family has secured an apartment at which Niles-Charles would live while awaiting trial.

Also released from pre-trial custody today: James de la Cruz, awaiting trial on charges of conspiracy to distribute heroin and fentanyl - more than 13 pounds of heroin and 22 pounds of fentanyl.

According to an affidavit from a Homeland Security agent, James de la Cruz drove up from New York on Oct. 3 and met with two would-be buyers - who were working for the feds - at the Stockyard in Brighton. On Oct. 8, he allegedly delivered samples to the putative buyers in the North Shore Mall parking lot, near the Cheesecake Factory. On Oct. 21, he was arrested after allegedly delivering the rest of the drugs outside the Marriott in Peabody.

For de la Cruz, the third time was the charm - judges had rejected his first two requests for a Covid-19 release because he's 28 and had shown no underlying medical conditions.

But then his lawyer told Boal that de la Cruz's family had sent him 160 pages of medical records detailing six ER visits for asthma in New York City over the past five years; the lawyer told the judge he knew de la Cruz had asthma, but thought it was more of a "nuisance" and did not think it worthy of brining to the court's attention at first.

The records also indicated that Mr. De La Cruz has “moderate” asthma, which is within the range of severity indicated by the CDC as high risk for COVID-19.

Also, he suffers from sleep apnea, which his lawyer says is now an underlying condition that could cause problems for Covid-19 patients.

Boal agreed that made a difference and ordered him released on unsecured bond.

Yesterday, Boal rejected a pre-trial release request from another detainee with asthma, saying that his asthma was not severe enough under CDC guidelines to put him at any particular risk of potential Covid-19 complications.

In a third case, Magistrate Judge Marianne Bowler rejected release for Leisy Baez-Zapata, who has been held since his arrest in Lowell on July 25 after allegedly delivering "a soft ball size quantity of what was later ascertained by laboratory analysis to be just under one kilogram of previously cut fentanyl" to a federal "cooperating witness."

Bowler wrote she agreed with federal prosecutors that Baez-Zapata had not shown any underlying conditions and that due to the amount of the drugs involved and that because he is a Dominican national whom ICE wants to deport and that he did not provide an address where he would reside while awaiting trial that he did not warrant pre-trial release.