CDC: No Need for Most Vaccinated or "Recovered"
COVID Individuals to be Given Booster; Merck Seeks Approval for New COVID Pill;
DELTA Continues Its March Through Federal Prisons; Federal Judge in 9th Circuit
Blocks Section 1326 Charges in Landmark Ruling; Appellate Updates
by Derek Gilna
A lot has
changed since COVID-19 ravaged American society, and taken the lives of 714,000
people. www.nytimes.com, 10-11-21.
Over half of those deaths have occurred under the Biden administration. Although official DOJ statistics list less
than 300 deaths in the federal prison system, the number continues to climb,
especially given the agency's practice of not counting newly-released prisoners
or those who died in the hospital hours after being "released." www.nytimes.com,
8-31-21. I know of three
federal prisoners who have died in the past 10 days. including one at Carswell
in Texas. and one in Tallahassee.
Although the number of Delta cases has begun to drop in the outside world,
numbers at many federal prisons continue to climb, and some have more than 100,
with entire units shut down.
This, of
course, exposes as a lie or at least an exaggeration the stock DOJ response in
compassionate release cases that the virus is "well-managed," and
"thousands of prisoners have been vaccinated." The difference of
course is in the outside world over 56% have received a
professionally-administered vaccine, ww.beckerhospitalreview.com, and another
30% have already had the disease and recovered.www.health.columbia.edu. That
means that over 86% of Americans in the outside world have some form of
immunity to COVID.
However, at
Oakdale, whereas over 70% of the prisoners have officially been vaccinated,
only 34% of the guards have been, according to the local union rep, Ronald
Morris. www.reuters.com. I thought our President had issued a federal mandate
on this issue?
The other
unreported issue is the botched DOJ vaccination process. In an anonymous
federal prison in Texas from July
and August of this year, the percentage of previously vaccinated federal
prisoners testing positive for DELTA was 74% (with unvaccinated prisoners
CVID-positive at a 93% infection rate). www.cdc.gov, September 21,2021. Carswell prisoners recall seeing boxes of
vaccines sitting on a hot loading dock for many hours, which would reduce its
potency exponentially. Does anyone think that the understaffed and
under-resourced federal prison system did any better job of storing and
administering the vaccines in prisons other than Carswell?
The other
under-reported issue is that there are tens of thousands of
"recovered" federal prisoners suffering symptoms of "Long
Covid," which can be life-threatening to the elderly, overweight, or
immuno-compromised prisoner. "What we have found is that in some
patients...the virus triggers an autoimmune reaction...the virus tricks the
body into attacking itself." Dr. Swati Deshmukh, Prof. at Northwestern University
Feinberg School
of Medicine. www.wlstv.com. Of course, one
would hope that even a federal judge should know that the level of medical care
in federal prison is non-existent.
The good
news is that there is now about to be approved an oral anti-viral medication
from Merck that has reduced hospitalization by about half, accord to the Wall
Street Journal, www.wsj.com, 10-8-21.
Even DOJ should be able to hand out a pill. Also, today's Journal also said
that "People who both had Covid-19 and are vaccinated don't need to rush
to get the booster," according to multiple health experts. "Another
factor that people who were infected and vaccinated should weigh before getting
a booster is whether the extra dose could raise their potential risk of
myocarditis, inflammation of the heart..."
Meanwhile,
federal prisoners continue to suffer: "At Coleman Low...61 positive cases
(in one unit) and...87 positive cases (in another)...they aren't testing so
they can reopen the compound." At Carswell: "there are 45 women from
that work unit who contracted the virus on the Work unit. Seven women are still
in the hospital, a few who were placed on ventilators and one who has been
unresponsive for over two weeks now. They have schedule to take her off life
support today as she has been in a coma for over two weeks." Others
complain that they are not getting their proper medication because of staff shortages,
and are denied treatment, like IV's, that would be given in the outside world.
At Tallahassee, multiple
infections, and at least one new death. At Yazoo
City: " Yazoo USP (Where
inmates were sent from Lexington
and Butner) and the Yazoo low is under Code Red.."
At USP Beaumont: " USP is on
lock down here 2 units are on quarantine."
Unfortunately,
at more than one DOJ prison facility, including one at the highest security
level, the following narrative is occurring:
"Here, there is a number of guards that are protesting the mandate
and picketing outside the complex.
Guards are being stretched to their limits on overtime as they cannot
keep shifts staffed. Programs are not
happening, education staff are being sent to work units and G.E.D. and programs
which are supposed to help inmates "rehabilitate" and reduce their
risk of recidivating are being cancelled, postponed or liquidated." Sound
familiar?
In United
States v. Gardner, No. 20-50481 (5th Cir.
2021), Gardner was indicted for possession with intent to distribute a mixture
or substance containing a detectable amount of methamphetamine. He retained
counsel (Bailey) and pleaded guilty without a plea agreement. Three months
later, Gardner’s initial PSR was
filed. On the day of sentencing, Bailey orally moved for and obtained a
continuance to file objections to the PSR. Days later, Gardner,
pro se, moved to appoint new counsel, saying that Bailey previously told him
that objections to the PSR had already been filed and that Bailey gave him inconsistent
information as to the availability of audio or video footage of the search that
led to his arrest. The court granted Bailey’s subsequent motion to withdraw and
appointed new counsel;
Gardner
then moved to withdraw his guilty plea, alleging ineffectiveness by former
counsel Bailey, who told him “that a motion to suppress would be filed after
the entering of the plea.” The district court denied the motion to withdraw the
plea without an evidentiary hearing, sentencing Gardner
to 240 months’ imprisonment. The Fifth Circuit vacated. Gardner
alleged sufficient facts to require a hearing upon the motion to withdraw, and
if granted, his motion to suppress.
In a court
ruling with potentially broad implications for U.S.
immigration cases, a federal judge in Nevada
found that a criminal law that dates to 1929 and makes it a felony for a person
who has been deported to return to the United
States is unconstitutional.
U.S.
District Judge Miranda Du in Reno, in an order issued Wednesday,
found the law widely known as Section 1326 is based on “racist, nativist roots”
and discriminates against Mexican and Latinx people in violation of the equal
protection clause of the Fifth Amendment .“Anybody who works in federal courts
knows the statute,” Franny Forsman, retired longtime chief of the Federal
Public Defender’s Office in Nevada,
said Thursday. “There really are a large number of cases that have been brought
over the years under that section. They’re mostly public defender cases.”
Section
1326 of the Immigration and Nationality Act makes it a crime for a person to
enter the U.S.
if they have been denied admission, deported or removed. It was enacted in 1952
using language from the Undesirable Aliens Act passed by Congress in 1929.
Penalties were stiffened five times between 1988 and 1996 to increase its
deterrent value. Forsman said she expected the government will appeal to the
9th U.S. Circuit Court of Appeals in San Francisco.
www.washingtontimes.com.
In United
States v. Yates, No. 18-30183 (9th Cir.
2021), Heine and Yates, bank executives, were convicted of conspiracy to commit
bank fraud (18 U.S.C. 1349) and 12 counts of making a false bank entry (18
U.S.C. 1005). The government told the jury that the two conspired to deprive
the bank of accurate financial information in its records, the defendants’
salaries, and the use of bank funds.
The Ninth Circuit vacated.
There is no cognizable property interest in the ethereal right to accurate
information. Distinguishing between a scheme to obtain a new or higher salary
and a scheme to deceive an employer while continuing to draw an existing
salary, the court held that the salary-maintenance theory was also legally
insufficient. Even assuming the bank-funds theory was valid, the government’s
reliance on those theories was not harmless. The court instructed the jury that
it could find the defendants guilty of making false entries as co-conspirators,
so the court also vacated the false-entry convictions. The court noted that
insufficient evidence supported certain false entry convictions.
We watching
a case in the federal district court in Minnesota,
which has implications for those currently on home confinement or who hope to
be soon and are concerned about being returned to jail. In Anderson
v. Birkholz, the judge said:
"The magistrate judge disagreed (with the government
position.) Noting that § 3624(c)(4) states
that "[n]othing in this subsection shall be construed to limit or restrict
the authority of the Director ...under section 3621," and that § 3621
gives ...broad discretion in designating a prisoner's place of confinement, the
magistrate judge concluded: A federal prisoner may not seek habeas relief on
the grounds that § 3624(c)(2) circumscribes the discretion otherwise
granted ...under § 3621(b). And Anderson
offers no reason to believe that the (bureau) overstepped its (broad)
discretion under § 3621(b) in determining where he should be placed for the
final months of his custodial term. (R&R at 4.)
In his
Objection, Anderson argues at
length that § 3621(b), and the broad discretion it guarantees to the BOP,
applies only to the BOP's designation of a
prisoner to a prison facility—not to home confinement
determinations. This Court has held otherwise—even under the First
Step Act. See, e.g., United States v. Johnson, No.
14-cr-00159 (DWF/TNL), 2021 WL 1550460,
at *3 (D. Minn. Apr. 20, 2021) ("[B]ecause release to home
confinement is a placement decision, the Court finds that it is solely
within( the federal prison system's) discretion to dictate." (citing 18
U.S.C. § 3624(c)); United States
v. Brown, No. 12-cr-00172(3) (SRN), 2020
WL 1922567, at *2 (D. Minn. Apr.
21, 2020) ("[T]he (federal prison system) has exclusive
authority to determine the placement of prisoners. The First Step Act, CARES
Act, and Second Chance Act merely give eligible inmates the possibility to be
considered for home confinement or halfway house placement." (citations
omitted)); United States v. Kluge, No. 17-cr-00061 (DWF), 2020
WL 209287, at *3 (D. Minn. Jan.
14, 2020) ("Nothing in the statutes amended by the FSA permits
the Court to place Defendant in home confinement. Under the FSA, the authority
to place a prisoner remains with the (bureau)." (citing 18 U.S.C. §§
3624(c)(4) and 3621(b)))." This should prove very interesting.
Be not
afraid and let not our heart be troubled.
Derek Gilna, Director, JD, MARJ, Federal
Legal Center,
113 McHenry Rd. #173, Buffalo
Grove, IL
60089 (and Indiana)
dgilna1948@yahoo.com
(English newsletter and ALL inquiries,
English or Spanish)
federallc_esp@yahoo.com, Spanish newsletter, but NO
inquiries.
Blog: "Derek
Gilna's Federal Criminal Justice Musings and Reflections."
