Passage of Infrastructure Bill Should Clear Way for Sentence
Reform Bills; Supreme Court Grants Cert to White-Collar Physician Drug Cases,
and Narrows Scope of Computer Crime Law; DELTA (and CARES) Will be With Us Well
Into the New Year; Case Updates
by Derek Gilna
The $1
billion federal infrastructure bill (which included a lot of additional funding
for things other than infrastructure) was approved by the House, and will now
move to the Senate, where passage is expected. The action, delayed for months,
came shortly before a one-week Congressional recess. Congress will return for a
week of work the following week, and then adjourn for Thanksgiving. I predict
that the "Build Back Better" bill will be tabled , which will free
time for consideration of the multiple bills awaiting committee and full
Congressional action. There is serious momentum behind most of these bills,
most of which have strong bipartisan support.
This
legislation takes on new significance, given that Biden has in fact increased
by almost 5000 the number of federal prisoners, which as of Nov. 4, 2021 was156,428
"Total Federal Inmates." Thus, over the last six months, the
total federal prison population has grown nearly 3% with more than 4,300
additional inmates.
Although
DOJ and some judges and circuits want the COVID-19 pandemic to go away, COVID
stubbornly holds on in the nation's jails and prisons. DOJ is clearly gambling
that even without testing and follow-up treatment for both the newly-infected
and "Long Covid" sufferers, the number of deaths will be insufficient
to outrage a public that is distracted by its own challenges. However, according
to www.cdc.gov, 11-4-21,"
89,711 New Cases, 1,604 New Deaths, Total deaths, 751,530," in the past
week.
FMC
Rochester has many individuals who are sick, feverish, and coughing
incessantly, but no one knows if it is the flu or COVID, because no one has
been tested. Lexington
has yet another confirmed COVID case.
It's clear
that DOJ is persisting with its policy of non-testing, or testing without
placing the test swab far enough up the nasal passage to be effective, to reduce its positives, and continues to
undercount new cases on its website. m Ft.
Dix: "On 11/03/2021, they swab tested us here in 5811; problem was, they only tested the
unvaccinated.- they act as if the vaccinated are immune. That is far from the truth; the vaccinated
catch and pass on the virus. Several
vaccinated in here that are sick. "
The CDC
agrees with him. "Vaccine Breakthroughs and Variants:
Some people who are fully vaccinated will get COVID-19. The
Delta variant is more contagious than previous variants of the virus that
causes COVID-19. Overall, if there are more infections with SARS-CoV-2 (the
virus that causes COVID-19) there will be more vaccine breakthrough
infections." www.cdc.com 11-1-21.
So, as long as DOJ continues to follow
its own path, and not the path of the CDC, COVID (and the CARES Act) will be
with us well in 2022, and perhaps beyond. In preparing individual petitions for
Compassionate Release, I use the most up-to-date data to advance your case, and
have arguments for relief for both vaccinated and unvaccinated individuals
An
additional argument is that DOJ, especially given its short staff, and shortage
of properly trained and competent medical staff, has done a poor job of
properly refrigerating and inoculating
prisoners seeking vaccinations, and is more interested in "checking the
box" than offering competent medical care. For not the first time, I heard
about someone with severe heart and blood pressure issues whose morning
medication was given to another prisoner with a similar name.
Pfizer Inc.
said Friday that its experimental antiviral pill for COVID-19 cut rates of
hospitalization and death by nearly 90% in high-risk adults, as the drug maker
joins the race to bring the first easy-to-use medication against the
coronavirus to the U.S.
market. Once Pfizer formally applies, the FDA could make a decision within
weeks or months. If authorized the company would sell the drug under the brand
name Paxlovid. We'll see if DOJ approves use of this pill in federal prisons to
displace its "wonder drug,"
Tylenol.
From Washington,
D.C., comes news that the US
Marshals will no longer use the DC jail as a holding facility. After years of
complaints, the agency finally responded, as clients represented by outside
counsel complained to the federal court judges hearing the January 6 riot
cases. In a letter from acting U.S. Marshal Lamont Ruffin to the
director of the D.C. Department of Corrections, obtained by The Washington
Post, Ruffin said investigators conducting a surprise inspection of the D.C.
Jail on the week of October 18 found that it appeared water and food were
withheld from inmates as punishment. (More on this next week.) So continue
to document your conditions to your elected representative.
In the U.S. Supreme Court, an order this past week
granted certiorari in a few new cases, including a (consolidated) pair of
criminal matters involving whether and when doctors can be criminal liable for
unlawfully dispensing prescription drugs. The two cases are Ruan v.
US, No. 20-1410, and Kahn v. US, No. 21-5261 previously reported on
here.
The Supreme
Court also limited certain computer-based offenses, in Van Buren v. U.S.
, No. 19–783, out of the 11th Circuit.. Former Georgia
police sergeant Nathan Van Buren used his patrol-car computer to access a law
enforcement database to retrieve information about a particular license plate
number in exchange for money. Although Van Buren used his own, valid
credentials to perform the search, his conduct violated a department policy
against obtaining database information for non-law-enforcement purposes.
Unbeknownst to Van Buren, his actions were part of a Federal Bureau of
Investigation sting operation. Van Buren was charged with a felony violation of
the Computer Fraud and Abuse Act of 1986 (CFAA), which subjects to criminal
liability anyone who “intentionally accesses a computer without authorization
or exceeds authorized access.” 18 U. S. C. §1030(a)(2). The Court, provided a
strict interpretation to the words "intentionally accesses a computer
without authorization or exceeds authorized access."
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In US v.
Sheppard, 20-3088, (3rd Cir. November
3, 2021) Sheppard began serving a three-year term of supervised
release in connection with a 2016 guilty plea for mail fraud. During the
first year of his supervision, Sheppard learned that his girlfriend and his
assigned probation officer were engaged in an alleged “personal relationship”
that included texting and telephone conversations concerning the probation
officer’s romantic relationship. Sheppard moved for early termination of his
term of supervised release under 18 U.S.C. 3583(e)(1). The Third Circuit
affirmed the summary denial of the motion. The district court was not
required to cite the specific 18 U.S.C. 3553(a) sentencing factors; it
sufficiently indicated that it considered the relevant factors. The court did
not fail to consider the effect of the probation officer’s alleged misconduct
but focused the majority of its decision on addressing Sheppard’s
rehabilitation argument. It found that Sheppard “offer[ed] no persuasive
explanation for why the purported misconduct of his former probation officer...
makes him less amenable to, or needful of, such assistance.”
Be not afraid and let not your 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.
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