CDC Sounds New Warning on "Breakthrough"
Infections; Guards File Grievance to Avoid Taking Vaccine:; Legislative Window
losing Quickly, Safe Sentencing Still in Committee; Supreme Court Advances
White-Collar Cases; Appellate Updates
by Derek Gilna
The CDC
issued a interesting statement on its website recently: "COVID-19
breakthrough infections are expected. COVID-19 vaccines are effective and are a
critical tool to bring the pandemic under control; however, no
vaccine is 100% effective at preventing illness. Some fully
vaccinated people will get sick, and some will even be hospitalized or die from
COVID-19. " www.cdc.gov, 10-15-21. The COVID death of
vaccinated General Colin Powell has sparked new controversy. Remember, initially all vaccines were initially "experimental," which permitted
their distribution without the normal months-long waiting period. Now, the
government deems them safe and non-experimental; however, 7,178 have died of
these breakthrough infections, and 25,000 have been hospitalized.
There was
also some worrisome new data on adverse reactions to vaccinations. AERS,
(Adverse Events Reporting System) our vaccine adverse effect reporting system,
showed at the beginning of this week 16,000 deaths, 23,000 disabilities, 10,000
MI/myocarditis, 87,000 urgent care visits, 75,000 hospital stays, and 775,000
total adverse events. The VAERS system is widely known to under-report events
by 1-10%. Eudravigilance, the European reporting system now associates
26,000 deaths in close proximity to administration of the vaccine.
Whistleblower data from the CMS system
(Medicare charts) showed close to 50,000 deaths in the Medicare group shortly
after the vaccine. www.fda.gov.
Elkton,
which was the epicenter of the DOJ pandemic, has again experienced an apparent
outbreak, with one death, and one gravely ill, but of course, none of this is
reflected on the website. It has been reported that over 50 are ill with
COVID-like symptoms. DOJ admits to significant cases of COVID-19 and 92 of
its 122 institutions are at a Level 3 (Intense COVID-19 protocols in place
as of October 5, 2021). A
number of institutions have also cancelled inmate visitation. There are also
reports from Terre Haute that the
entire prison is on lockdown for COVID infections. One prisoner noted, " The
(vaccine vials) are exposed to the
elements, they are left sitting on carts for many hours on end and they are
supposed to be kept at below freezing temperatures and they will sit in the
hall way."
There was
another fatality at Tallahassee, and
many positive cases at Allenwood, with individuals not reporting symptoms to
avoid being put in the SHU. Coleman has seen
multiple cases from vaccinated individuals.
According
to the Department of Justice Office of Inspector General survey earlier
this year, 63% of the Federal Bureau of Prisons (BOP)
staff reported that they had already been vaccinated or were planning to get
vaccinated as soon as possible, by the BOP
or otherwise. However, nearly 20 percent of respondents said that they
were not sure whether they would get vaccinated and another 18 percent said
they did not plan to get vaccinated at all. www.forbes.com, https://experience.argis.com.
DOJ has
mandated all employees must be vaccinated by November 22, 2021, or risk termination. Eric Speirs,
President of AFGE Local 501 in Miami
(FDC Miami) submitted a grievance that the
mandate is unconstitutional and also argues that inmates, who cannot be
mandated to take the vaccine, have more rights than the staff who supervise
them. “I’m all for vaccines but this is not a personal issue, it is a
Constitutional issue.” (Good to see that the government employees are fully on
board with following the Constitution...)
Another
concern is the lack of programming, and
the breakdown of basic products and services at most institutions (including
soap), generally blamed on staff shortages. The General Accounting Office said,
"“Institution staff we interviewed stated that staffing shortfalls result
in excessive overtime usage and a shortage of staff available for inmate
programming such as drug treatment and education programs."
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Congress
continues to be bogged down with multiple meetings on the Infrastructure and other
social justice measures with huge price tags, with important bills like Safe
Sentencing in committee. On September 30, Senators Grassley and Durbin
introduced, Senate Bill 2814, “Terry Technical Correction Act,” to reverse
the narrowing of the Supreme Court's Terry decision.
Two new
cases involving medical professionals accused by DOJ of drug-dealing have
found their way to the U.S. Supreme Court. Couch v. United States, 20-7934,
from the 11th Circuit, asks, "(1) Whether the trial court erred by
conflating the valid defense of a crime as an element of that crime in its
instruction to the jury regarding a physician alleged to have violated 21
U.S.C. § 841(a); and (2) whether the trial court erred by not explaining or
adequately defining “good faith” in its instructions to the jury regarding a
Controlled Substances Act case involving a physician.
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Ruan v. United States, 20-1410, also
from the 11th, asks, " Whether a physician alleged to have prescribed
controlled substances outside the usual course of professional practice may
be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without
regard to whether, in good faith, he 'reasonably believed' or 'subjectively
intended' that his prescriptions fall within that course of professional
practice."
In the
circuits, in Bridges v. United States (March 7th Cir.
2021), Mar 23, 2021, the Seventh Circuit remanded a defendant’s 2255
motion for an evidentiary hearing, holding that the defendant had made a
sufficient showing that he may have received ineffective assistance of
counsel based on his lawyer’s failure to argue that his Hobbs Act robbery
was not a crime of violence under the career offender provision of the
sentencing guidelines. While the Seventh Circuit had not yet decided
whether Hobbs Act robbery was a crime of violence at the time of the
defendant’s sentencing, other circuits had, the categorical approach under
the Guidelines was well-known, and this was enough to warrant at least a
hearing to determine whether the defendant’s counsel failed to reasonably
investigate the issue before the defendant’s sentencing.
In U.S. v. Crooks, 997 F.3d 1273
(10th Cir. 2021) the 10th Circuit held that a district court is able to
correct an erroneous career offender enhancement when a defendant qualifies
for First Step relief, along with every other circuit who has considered the
same issue. It quoted a previous decision which stated, "If a district
court erred in the first Guideline calculation, it is not obligated to err
again."
In a case
that will probably shortly find its way to the U.S. Supreme Court, U.S. v.
Goodall, 18-10004,
(9th Cir. October 13, 2021), the defendant, facing more than 70
years in prison for his role in multiple armed robberies, pleaded guilty to two counts of
conspiracy to commit Hobbs Act robbery (18 U.S.C. 1951(a)) and brandishing
a firearm during and in relation to a crime of violence (18 U.S.C.
924(c)(3)), with a 20-year sentencing recommendation. He waived his right
to appeal his conviction or sentence. The court imposed a 14-year sentence.
About
18 months later, the Supreme Court (Davis,
2019), held that a conspiracy to commit Hobbs Act robbery cannot be a crime
of violence under section 924(c)(3)'s residual clause. Goodall sought to
vacate his conviction and sentence, arguing that Hobbs Act conspiracy is
not a “crime of violence” under 924(c)’s “elements clause.” The Ninth
Circuit dismissed. Goodall’s appellate waiver foreclosed any challenge
based on Davis; the waiver was
knowing and voluntary. The “illegal sentence” exception to an appellate
waiver does not apply; it does not include illegal convictions. The
rationale for the “illegal sentence” exception rests on the inherent
uncertainty in sentencing, which does not exist for convictions. Although
there always remains a chance the law could change in a defendant’s favor,
the defendant knowingly and voluntarily assumes that risk because he
receives a presumably favorable deal under existing law.
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.
Blog: "Derek
Gilna's Federal Criminal Justice Musings and Reflections."
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