Delta Variant Newest Threat to Prisoners in Medically Incompetent Federal Bureau of Prisons, Experts and Prison Guards Agree

Nation Celebrates Fourth of July and Joys of Freedom. but  Prisoners Know Its True Worth; Delta Variant Continues to Spread; DOJ Guards Union Comments on Medical Care; IRS Has Over 35 Unprocessed Million Tax Returns

 

by Derek Gilna

 

            While Americans take time off to celebrate the abstract concept of "freedom," they could benefit from hearing the voices of the imprisoned, for it is they who truly appreciate its worth. Fortunately for them, all the signs for further reform are still positive in all three branches of government. Criminal justice reform continues to enjoy wide support.

            In the Supreme Court, the justices will study the application of 924(c)'s added mandatory punishments for gun use in the case of United States v. Taylor, 20-1459, which formally presents this question: "Whether 18 U.S.C. 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a). This development is clearly overdue.

            The Senate continues focusing on a pervasive overhaul of the criminal justice (and more restrictive oversight of the prison system)  system that advanced under Trump.  Senate Judiciary Chair Dick Durbin (D-Ill.) described criminal justice reform as a “personal priority” for himself and his GOP counterpart, Iowa Sen. Chuck Grassley. House Democratic Caucus Chair Hakeem Jeffries (D-N.Y.) said this week that he expects both chambers will "be moving a series of bipartisan criminal justice reform bills.        The Senate Judiciary Committee has approved three bills co-sponsored by Durbin and Grassley.  The first would give inmates the ability to petition for the sentencing changes established in 2018 to apply retroactively, among other provisions.  The second would prohibit a judge from considering any conduct for which a defendant was acquitted in sentencing. Finally, the third would expand eligibility for a program that allows elderly prisoners to serve out the remainder of their sentences at home.  That measure also includes a provision that would allow vulnerability to Covid-19 to qualify as a reason for compassionate release.

            Advocates are hoping to see further movement before Congress leaves for its scheduled August recess, Durbin said he is working to pass his bills by voice vote, but if that doesn’t work he will ask Senate Majority Leader Chuck Schumer (D-N.Y.) for floor time.  Grassley predicted that some time in the fall would be more likely.       The President is also under heavy pressure to complete his clemency overhaul and make good his promise to make a bold statement on clemencies in his first year in office.

            The more dangerous and more transmissible Delta variant has spread to nearly every state in the US, feeding health experts' concern over potential COVID-19 spikes in the fall. The variant was first identified in India and is now considered a variant of concern by the US Centers for Disease Control and Prevention, meaning scientists believe it can spread more easily or cause more severe disease. The Delta variant now accounts for about 1 in every 5 new coronavirus infections in the US, the CDC has said. And with more than half of the population still not fully vaccinated, according to the CDC, health experts and officials worry that regions with low amounts of virus protection could see surges in the fall and winter. https://covid.cdc.gov; www.ap.com.

            “A great many of the (prisoners) who ever had COVID, they were never tested,” said Dr. Homer Venters, a former chief medical officer of the New York City jail system who has inspected health conditions in prisons around the country over the last year. “In most prisons it ran through these places like wildfire. People were never tested.” www.ap.com.

            I was not surprised to hear a multitude of comments regarding incompetent  federal prison medical care, but was surprised that national media appears to have new interest in this story. Union leaders, prison health care workers and advocates for prisoners’ rights said it was troubling that the people leading the federal prison system’s Health Services Division during the COVID-19 crisis lacked medical licenses. The prison system came under fire last year from politicians and union leaders for pressuring guards to come to work sick, failing to follow its own pandemic plan and buying knock-off N-95 masks. “This is why our agency is broken,” said Joe Rojas, a union leader who works at the Coleman prison complex in Florida. “You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background.” www.themarshallproject.org.

            The IRS has admitted that it has over 35 million unprocessed tax returns, a staggering number for early July.   This number does not even begin to account for the thousands of inquiries and amended return/change of address forms that have been filed, further delaying refunds.   Make sure your forms are filed, but patience will be required.

In the circuits, in US v. Brenner,  19-5647, (6th Cir. 7-1-21) Brenner pled guilty without a plea agreement to being a felon in possession of a firearm and in possession of ammunition, 18 U.S.C. 922(g).He had three Tennessee felony convictions: aggravated assault in 2005, aggravated assault while acting in concert in 2014, and reckless aggravated assault in 2014. Under ACCA, 18 U.S.C. 924(e)(1), Brenner had to be sentenced to a 15-year minimum for her section 922(g) convictions if the government proved that she had three prior convictions for “violent felonies” having “as an element the use, attempted use, or threatened use of physical force against the person of another.” The district court agreed with Brenner that her reckless aggravated assault conviction is not a “violent felony” and sentenced Brenner to a within-Guidelines term of 110 months’ imprisonment. The Sixth Circuit held the government’s appeal in abeyance and dismissed the appeal after the Supreme Court’s 2021 Borden holding that the ACCA’s elements clause does not “include offenses criminalizing reckless conduct.” ACCA’s use of the phrase “against another” “demands that the perpetrator directs his action at, or target, another individual,” and “[r]eckless conduct is not aimed in that prescribed manner.”                 In US v Heyward, 19-1054, (2nd Cir. 6-28-21) the defendant was convicted of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. 1962(d) (Count One); conspiring to distribute narcotics, in violation of 21 U.S.C. 841(b)(1)(A), 846 (Count Two); and possessing or aiding and abetting the possession of firearms in furtherance of either the racketeering conspiracy or the narcotics conspiracy charged in the prior two counts, in violation of 18 U.S.C. 924(c) (Count Three). The jury specially found that the pattern of racketeering activity charged in Count One encompassed both narcotics and murder conspiracy conduct. The jury also found that a firearm relevant to Count Three was discharged in furtherance of the Count One racketeering conspiracy but was not discharged in furtherance of the separate Count Two narcotics conspiracy. The district court sentenced defendant to 120 months' imprisonment for Count Three, to be served consecutive to his concurrent 120-month sentences for Counts One and Two. The Second Circuit concluded that its recent decisions in the wake of United States v. Davis, 139 S. Ct. 2319 (2019), preclude section 924(c) from being applied to a murder conspiracy.  Therefore, given the possibility that defendant's section 924(c) conviction was based on murder conspiracy conduct rather than on a qualifying drug-trafficking offense, the court held that his conviction on Count Three is invalid. Accordingly, the court vacated defendant's section 924(c) conviction and remanded for further proceedings.                                                                                                                                                 Be not afraid and let not your heart be troubled.   Federal Legal Center, Derek A. Gilna, JD< (De Paul 75), MARJ, (Vermont LS 2021), Dir., 113 McHenry Rd., #173, Buffalo Grove, IL  60089 (And also Indiana) dgilna1948@yahoo.com (alternated: dagilna1948@yahoo.com), for English newsletter and questions in both English and Spanish; federallc_esp@yahoo.com, Spanish newsletter only; Blog at : "Derek Gilna's Federal Criminal Justice Musings and Reflections."

CARES Releases Continue; Justice Reform Bills Wait their Turn in Congress

 

CARES Releases Continue: New Congressional Bills Filed as Reform Momentum Builds; New COVID Delta Variant Spreads; DOJ Personnel Shortages Threaten Programming and Sentence Credit

 

by Derek Gilna

 

            A random sampling of responses from various institutions  shows that there appears to be a direct correlation between individuals filing well-drafted compassionate release petitions in court, and CARES relief being granted. Although rumors are rampant that a "memo" exists for this new initiative, it has not yet been made public. However, given the low level of effective vaccination of prisoners, and the usual DOJ inefficiency in offering follow-up medical care for the previously infected,  a court petition would certainly be advisable at this time

            The quick spread of the new Delta COVID variant in the US is causing official  concern. According to the Associate Press, Tedros Adhanom Ghebreyesus, the head of the World Health Organization said the Covid-19 delta variant, first seen in India, is “the most transmissible of the variants identified so far,” and warned it is now spreading in at least 85 countries, including the US, where it has replaced the original COVID virus in many areas.

            Public-health officials say Delta is very risky to unvaccinated people. It is about 50% more transmissible than the current dominant U.S. strain, Alpha, which itself is 50% more transmissible than the most commonly circulating strain last year. "This variant represents a set of mutations that could lead to future mutations that evade our vaccines, and that’s why it’s more important than ever to get vaccinated now, to stop the chain of infections, the chain of mutations that could lead to a more dangerous variant," said Centers for Disease Control and Prevention Director Rochelle Walensky.

www.wsj.com;   6-23-21

            "The global situation is incredibly fragile,” said Maria Van Kerkhove, the WHO’s technical lead on Covid-19.“The delta variant, the virus, will continue to evolve,” he said. “Right now our public health and social measures work, our vaccines work, our diagnostics work, our therapeutics work. But there may be a time where this virus evolves and these countermeasures don’t.”www.ap.com. Needless to say, after-care in DOJ is non-existent.

            This, combined with the uncertainty of the long-term effectiveness of the vaccines, which were rolled out without the usual waiting period to determine the existence of any serious side-effects, means that federal prisoners are still at risk.

            The Biden administration endorsed legislation today that would finally end the federal sentencing disparity between crack and powder cocaine offenses, and close the book on one of the most destructive parts of Joe Biden's legacy as a senator.

Regina LaBelle, acting director of the White House Office of National Drug Control Policy, said in prepared remarks at a Senate Judiciary Committee hearing last week said that the Biden administration "strongly supports" eliminating the sentencing disparity between crack and powder cocaine. The EQUAL Act, a bill sponsored by Senate Majority Whip Dick Durbin (D–Ill.), Sen. Cory Booker (D–N.J.), and Sen. Rob Portman (R–Ohio)  would erase that sentencing disparity.

            A new study by the DOJ Inspector General (OIG) finds that the federal prison system is severely understaffed: " Nearly one-third of federal correctional officer jobs in the United States are vacant, forcing prisons to use cooks, teachers, nurses and other workers to guard inmates. The expanded use of that practice, known as augmentation, has been raising questions about whether the agency can carry out its required duties to ensure the safety of prisoners and staff members while also putting in place programs and classes required under the law." www.doj.gov. Staff shortages are nothing new, but Biden officials are increasingly disenchanted with the embarrassing lapses in institutional management, removing or reassigning multiple wardens and upper level staff, and reviewing the current director's performance.

            Based upon a deluge of complaints from prisoner families, multiple investigations are also ongoing, especially in one particular women's institution, long known for shoddy management, and poor medical care. Although the government (and DOJ) is known for minimizing the misconduct of its employees, this is one instance where some staff might pay the price.

            After the COVID-19 pandemic impacted prisons across the country, infecting hundreds of thousands of people and causing thousands of deaths, U.S. Senator Brian Schatz (D-Hawai‘i) today reintroduced the EMERGENCY GRACE Act, that would accelerate DOJ's approval process for compassionate release during a public health emergency. “People who are eligible for compassionate release are the most vulnerable to public health emergencies like COVID-19, and they are needlessly being put at risk because the process takes too long,” said Senator Schatz. “Our bill will help speed up the approval process so that sick and elderly who qualify for compassionate release get it.”

            In the circuits, In Broadway v. US, (10th Cir. June 22, 2021)  the court reversed a denial of a motion for reduction of sentence under First Step. Section 404 of the First Step Act "opened the courtroom doors" to these defendants to move for discretionary sentence reductions based on the retroactive application of the Fair Sentencing Act. The Tenth Circuit Court of Appeals found that although the remedial purpose of section 404 was clear, its language had not been interpreted uniformly. Because application of section 404(b) "should not vary from defendant to defendant," the Court concluded that before a district court exercises its discretion, "it should look to the drug quantity and Sentencing Guidelines associated with an eligible defendant’s offense of conviction, rather than his underlying conduct, to 'impose a reduced sentence as if . . . the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.'” The district court did not do so here, so denial of defendant-appellant Jason Broadway's petition for sentence reduction was reversed.

            Be not afraid and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD, DePaul Law, 1975, Master of Restorative Justice (MARJ), 2020, Vermont Law School, Director, 113 McHenry Rd. #173,  Buffalo Grove, IL   60089, (and Indiana).dgilna1948@yahoo.com (emergency alternate: dagilna1948@yahoo.com); English and Spanish questions, and English language newsletter; federallc_esp@yahoo.com, Spanish newsletter; blogging at "Derek Gilna's Federal Criminal Justice Musings and Reflections."

           

Plight of Covid "Long-Haulers" Highlights Threat of BOP Medical Indifference to Prisoner Suffering

 

Federal Prison System Fails to Treat COVID "Long-Haulers" Continuing Symptoms

 

by Derek Gilna

 

            Although most of the country has reopened with minimal restrictions, and new COVID cases have dropped to the lowest level since March of 2020, the pandemic continues in prison, for a variety of reasons. First, DOJ continues to try to sweep the problem under the rug. As the Marshall Project reports: "Our understanding of the full toll of the pandemic on incarcerated people is limited by the (DOJ's) policy of removing cases and deaths from its reports in recent months. As a result, we cannot accurately determine new cases in federal prisons, which have had more people infected than any other system." themarshallproject.org.

            Two, although DOJ claims that it has vaccinated approximately half of the prisoners in its custody, doubts remain as to the accuracy of that figure. Given improper handling of the vaccine at various institutions, it is questionable whether or not some of those does were effective. Third, and most importantly, DOJ continues to withhold treatment from previously infected persons, nationwide.   I know of not one instance where any prisoner suffering severe symptoms has received the necessary specialized treatment that is available.

            "Older people and people with many serious medical conditions are the most likely to experience lingering COVID-19 symptoms, but even young, otherwise healthy people can feel unwell for weeks to months after infection. ( These can include:) Fatigue, Shortness of breath or difficulty breathing, Cough, Joint pain, Chest pain, Memory, concentration or sleep problems, Muscle pain or headache, Fast or pounding heartbeat, Loss of smell or taste, Depression or anxiety, Fever, Dizziness when you stand. Worsened symptoms after physical or mental activities." www.mayoclinic.org.

            Mayo continued: "Although COVID-19 is seen as a disease that primarily affects the lungs, it can damage many other organs as well. This organ damage may increase the risk of long-term health problems. Organs that may be affected by COVID-19 include:

Heart. Imaging tests taken months after recovery from COVID-19 have shown lasting damage to the heart muscle, even in people who experienced only mild COVID-19 symptoms. This may increase the risk of heart failure or other heart complications in the future. Lungs. The type of pneumonia often associated with COVID-19 can cause long-standing damage to the tiny air sacs (alveoli) in the lungs. The resulting scar tissue can lead to long-term breathing problems. Brain. Even in young people, COVID-19 can cause strokes, seizures and Guillain-Barre syndrome — a condition that causes temporary paralysis. COVID-19 may also increase the risk of developing Parkinson's disease and Alzheimer's disease. Some adults...experience multi-system inflammatory syndrome after they have had COVID-19. In this condition, some organs and tissues become severely inflamed."

            See also: Berkeley Lovelace, Jr., “Dr. Fauci Says New Data Suggests ‘Long’ Covid Symptoms Can Last Up to 9 Months,” CNBC, February 24, 2021, https://www.cnbc.com/2021/02/24/fauci-says-new-data-suggest-long-covid-symptomscan-last-up-to-9-months.html. And: Johns Hopkins Medicine, “COVID ‘Long Haulers’: Long-Term Effects of COVID-19,” April 1, 2021, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/covid-long-haulers-long-term-effects-ofcovid19

            Needless to say, no DOJ institution is equipped to perform these diagnostic checks and it is highly unlikely that you will be sent out to have them done. If you are skeptical of this statement, you need only study the matter of Michelle McGee, who complained about being denied simple diagnostic tests for many  months after she showed clear symptoms of cancer, before she was finally released. Yet another woman, a pre-trial detainee, recently died at Carswell, who received no treatment for persistent  chest-pains.

            Congress has noticed, and introduced a new piece of legislation to address this very issue: S. 2095: A bill to expand compassionate release authority and elderly home confinement access for offenders with heightened coronavirus risk.

            There is other good news on the federal legislative front, as elected representatives continue to introduce proposals that will have an immediate impact on federal incarceration.   As reported in the Federalist, "on June 15, ... Democratic Representatives Bonnie Watson Coleman (D-NJ), and Cori Bush, (D-MO), have unveiled the Drug Policy Reform Act (DPRA) to help right some of its wrongs. The bill, developed with the help of the Drug Policy Alliance (DPA) and the first of its kind, would end criminal penalties for all drug possession at the federal level. It would also transition regulatory power from the attorney general to the secretary of health and human services (HHS), expunge drug-related criminal records and provide for resentencing options, and invest in health-centered approaches to drug use. The legislation additionally addresses many lifelong ramifications associated with drug convictions, like denial of employment, voting rights and immigration status."   All other bills in both the House and Senate continue to await introduction to the full bodies for a vote, while the infrastructure bill dominates Congressional schedules. It was also reported that there remain 93 vacancies for head AUSA's, and multiple key positions in DOJ, showing the Biden administration is still struggling to manage criminal justice reform expectations after five months.

There were two interesting cases recently in the 7th Circuit. In the first, US v. Fowowe, 20-3197, decided June 16, 2021, a crack offender sought re-sentencing under First Step.   The court asked: "Does § 404(b) authorize or require a district court to apply a judicial decision issued after the defendant was initially sentenced? ...We hold that § 404(b) authorizes but does not require district courts to apply an intervening judicial decision in evaluating First Step Act motions. Given this, we conclude the district court did not abuse its discretion in declining to recalculate Fowowe’s sentencing range. We now affirm."         In the second case, US v McHaney, 20-1690, June 14, 2021, an offender was charged with Hobbs Act (HA) Robbery, HA conspiracy and attempted HA robbery, and "three counts of 18 USC 914(c)(1)(A)." The Seventh Circuit affirmed, declining to reject its precedent that Hobbs Act robbery meets the definition of a crime of violence under 18 U.S.C. 924(c) and is a qualifying predicate crime under the statute. Putting any person in fear in the context of robbery necessarily involves “the use, attempted use, or threatened use of physical force against the person of another.“Every other court of appeals to have considered this agrees with this conclusion.”

Be not afraid, and let not your heart be troubled.   Federal Legal Center, Derek A. Gilna, JD, MARJ, Director, 113 McHenry #173, Buffalo Grove, IL   60089 (and Indiana). dgilna1948@yahoo.com, (newsletter in English and questions in English and Spanish); federallc_esp@yahoo.com, (Spanish Newsletters only). Blog: Derek Gilna's Federal Criminal Justice Musings and Reflections, at Google blogspot.

 

Terry, Greer, and Borden Cases Extend Possibilities for Sentence Relief

 

Multiple Supreme Court Decisions;   Covid Complications Update; Are Prisoners Getting their Mail?

 

by Derek Gilna

 

            Following the opinion in Borden the past week, the Supreme Court of the United States (SCOTUS) released two decisions this morning.  Terry v. US, No. 20– 5904 (S. Ct. June 14, 2021), serves to limit the offenders who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act.  In the words of Justice Thomas, "The First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence.  The question here is whether crack offenders who did not trigger a mandatory minimum (MM) qualify.  They do not."   However, it is those MM individuals who most need the relief, and their pathway to a sentence reduction remains open. 

            The second SCOTUS opinion released today was Greer v. US, No. 19–8709 (S. Ct. June 14, 2021), holding that "in felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon." Once again, it is always a better practice to make that objection at the district court level.

            Borden v. US, No. 19–5410 (S. Ct. June 10, 2021), reversed and remanded a 6th Circuit ruling that an offense with a mental state of recklessness may qualify as a “violent felony” under the Armed Career Criminal Act’s elements clause, 18 U.S.C. § 924(e)(2)(B)(i). Borden pleaded guilty as a felon-in-possession, and the government sought an enhanced sentence under ACCA, which mandates a 15-year minimum sentence for those with three or more prior convictions for a “violent felony.” An offense qualifies as a violent felony under ACCA’s elements clause if it necessarily involves “the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. 924(e)(2)(B)(i). One of Borden’s three predicate convictions was for reckless aggravated assault in violation of Tennessee law. Borden argued that this offense was not a violent felony under ACCA’s elements clause because a mental state of recklessness suffices for conviction and only purposeful or knowing conduct satisfies the requirement of the use of force “against the person of another.” This ruling will bring relief for many prisoners.

            It is indisputable that medical care in the federal prison system is third-rate.

Illness is still the most common cause of death, but how common is illness in prison?

Even though most prison deaths each year are attributed to illness, and are therefore “natural,” being sick or old in prison is not quite what it is on the outside. Incarceration can add 10 or 15 years to someone’s physiology, and take two years off of their life expectancy per year served, alarming statistics when considered alongside longer sentences and high costs of healthcare for older people.

            This was the situation even prior to COVID, which claimed the lives of over two hundred federal prisoners, dozens of staff, and sickened thousands of others. It is this latter group who are now as most serious risk of succumbing to other illnesses. Farther complicating this equation is the number of individuals who are suffering reactions, in some instances delayed, to their second dose of vaccine. (I have previously written of my skepticism that those pitifully few vaccines delivered to federal prisoners were even properly handled.)

            "A higher-than-usual number of cases of a type of heart inflammation has been reported following Covid-19 vaccination, especially among young men following their second dose of an mRNA vaccine, the Centers for Disease Control and Prevention said Thursday. Overall, 226 cases of myocarditis or pericarditis after vaccination in people younger than age 30 have been confirmed, Dr. Tom Shimabukuro, deputy director of the CDC's Immunization Safety Office, said during a presentation to a Food and Drug Administration advisory group. Further investigation is needed, however, to confirm whether the vaccination was the cause of the heart problem. Normally, fewer than 100 cases would be expected for this age group. Teenagers and people in their early 20s accounted for more than half of the myocarditis cases reported to the CDC's safety monitoring systems following Covid-19 vaccination, despite representing a fraction of people who have received the shots. 'We clearly have an imbalance there,' Shimabukuro said." www.nbcnews.com.  CDC investigates rare heart problem in a few young vaccine recipients, May 24, 2021. (Remember these are ONLY the ones who were hospitalized.)

            Myocarditis is condition that involves inflammation of the heart muscle. Symptoms can include fever and fatigue, as well as shortness of breath and a very specific type of chest pain. Patients tend to say their chest hurts more when they lean forward. The pain tends to abate when they lean back. www.mayoclinic.org.

            The CDC has also reported on the increasing instances of myocarditis in other individuals. , Dr. Cody Meissner, chief of infectious diseases at the Tufts Hospital in Boston, said "it is hard to deny that there's some event that seems to be occurring in terms of myocarditis." www.nbcnew.com.

            Another challenge for prisoners attempting to win compassionate release is the "interesting" disconnect between what a prisoner tells the prison medical worker and what makes it into the records. I see this quite often, from almost every institution. You should know that there are severe federal penalties for such activity. 14 CFR § Section 61.59 reads as follows: " .61.59 Falsification, reproduction, or alteration of applications, certificates, logbooks, reports, or records... See also: 49 CFR § 1570.5 - Fraud and intentional falsification of records.

                        Of course, the problem is that prison medical staff rarely refer individuals, even with pre-existing conditions such as heart disease, cancer, or TB, for outside testing, and most often ignore those "recovered" individuals still suffering from untreated COVID side effects.

            Another recurring problem is staff tampering with both incoming and incoming mail. In institutions where there is "photocopy rule" in effect, delays can almost a month.  Outgoing legal mail  is often delayed, and "surprise, surprise"  will lie to you.   (Document everything). You should know that most judges are well aware that DOJ abuses the administrative remedy process, but you still have to exhaust before you file in court.

            Do not be afraid and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD DePaul, 1975, MARJ Vermont Law School, 2020, Director, 113 McHenry Rd. #173, Buffalo Grove, IL   60089, (and Indiana)

dgilna1948@yahoo.com (English language newsletters and English/Spanish questions),

federallc_esp@yahoo.com (Spanish newsletters only); "Derek Gilna's Federal Criminal Justice Musings and Reflections."

 

Repost of June 7

 

DOJ Up to its Old Tricks, Seeks Additional Agents and Prosecutors to Curb "Domestic Terrorism"

 

by Derek Gilna

 

Biden's new-found appetite for criminal justice reform is being tested with a new federal Department of Justice (DOJ) initiative announced recently to fight "domestic terrorism," the newest DOJ crime "war." Criminal justice advocates like myself know that these wars end badly, with more federal employees justifying their existence and high pay by over-prosecuting or "manufacturing" crime.  (See the horrendous results of previous examples of federal prosecutorial overreach:  war on drugs; war on sex trafficking; Operation Playpen; Drug Stash Houses; not to mention prosecutions of "real estate fraud" and "medical provider fraud.") In all these instances, federal prosecutors used broadly-written federal statutes to magnify penalties for crimes that had previously been prosecuted on the state level.             Fortunately, a promising coalition of US Supreme Court justices is telling prosecutors that they have had enough with federal prosecutors' expansive interpretations of statutes, in the case of United States v Van Buren,  19-783, January 3, 2021. The 6-3 vote crossed ideological lines. Justice Amy Coney Barrett, for the majority, wrote that the Computer Fraud and Abuse Act could not be interpreted in a broad way to support the conviction of a police officer who accepted money from an FBI informant to search through a license-plate database. The court’s three liberals sided with three of its conservatives. The other three conservatives dissented.              There are no new developments on any of the Biden legislative initiatives currently sitting in Congressional Committees, as the Democrats wrestle with challenges passing their infrastructure and voting rights agenda, putting more pressure on advocates of clemency reform, which has assumed new importance.                        Various investigations, both internal and external, are quietly looking into the systemic failure of the federal prison medical system in dealing with the outbreak, management, and aftermath of COVID-19.   A March 2021 TRULINCS Survey by DOJ asked prisoners to rate that system. My guess is that upwards of 90% rated it "poor." Now what will DOJ (and Congress) do with that data? District court judges are now well aware of DOJ's medical system failures, and are still granting judicial relief, including the granting of 2241's, but only after your exhaust administrative remedies questioning institutional application of time-credits, and failures to offer timely medical care.                           Another area of investigation should be the inability of DOJ prison officials to stem the unconscionable introduction of both real and synthetic stimulants into its women's facilities, which is a threat to the health of all medically-compromised individuals in those facilities.   Why are authorities, who are well-aware of the problem, not taking action? This should be cited in any internal or external filings for relief, especially if DOJ claims that its "Action Plans" have reduced health threats to prisoners from COVID.                    Untreated post COVID complications have led to an epidemic of misery, with one Lompoc prisoner with high blood pressure, stage 2 kidney disease, and obesity complaining of nerve pain and tingling in both feet and both hands, now being designated for transfer rather than treatment. New CR petitions must emphasize the inability (and unwillingness) of DOJ to treat these lingering conditions.         There have been many favorable decisions in the circuits. In United States v. Abdulaziz, No. 19-2030 (1st Cir. June 2, 2021), the First Circuit vacated judgment imposing a five-year prison sentence upon Defendant for committing a federal firearms offense, holding that the district court erred in resolving what constitutes a "controlled substance" within the meaning of section 2K2.1(a)(2) of the United States Sentencing Guidelines," subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." The First Circuit vacated the judgment below, holding that Defendant's Massachusetts conviction was not a conviction of a "controlled substance offense" within the meaning of that term as it was used in the version of section 2K2.1(a)(2) that was applicable at Defendant's sentencing.             In United States v. Jarvis, 20-3912, (6th Cir. June 3, 2021), In 1994, Jarvis was convicted of four counts of armed bank robbery, conspiracy, and five counts of using a firearm in furtherance of a crime of violence, 18 U.S.C. 2113, 371, 924(c). The court determined that his first 924(c) firearm conviction generated a statutory minimum sentence of five years and that his other four 924(c) convictions, repeat offenses, were each subject to a statutory minimum of 20 consecutive years and sentenced Jarvis to 85 years plus 11 years on his other convictions. In 2014, the Supreme Court clarified that for aiding-and-abetting liability under 924(c) a defendant must have “advance knowledge” that a firearm would be used. Jarvis successfully moved to have three 924(c) convictions vacated for insufficient evidence of advance knowledge. The district court resentenced Jarvis to five years for his first 924(c) conviction, 20 for his second, and 15 for his other convictions. The 2018 First Step Act amended 924(c), limiting the firearm convictions that count as repeat offenses.                  Also decided in the 6th Circuit was the white-collar case of US v Hack, 19-6278, (6th Cir. June 3, 2021).  Hack pleaded guilty to conspiracy to commit bank fraud, mortgage fraud, and wire fraud. The plea agreement contained an appeal waiver. In addition to terms of imprisonment and supervised release, the court ordered Hack to pay $803,420 in restitution to two mortgage companies, as required by the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3664(f)(1)(A). The court set a payment schedule during Hack’s imprisonment and stated: Upon commencement of the term of supervised release, the probation officer shall review your financial circumstances and recommend a payment schedule on any outstanding balance. During his period of supervised release, Hack moved to modify the restitution order, citing “a one-time opportunity” to obtain financing and proposing to pay the mortgage companies $100,000 and $28,000 in lump sums, attaching declarations from the companies stating that they preferred lump-sum payments over incremental payments. The district court denied the motion, concluding that it did “not have the authority under the MVRA to modify its final Restitution Order into two reduced lump-sum restitution payments.” The Sixth Circuit affirmed, concluding that Hack’s plea agreement barred the appeal.              From Senator John Kennedy: "You can only be young once, but you can be immature forever." Be not afraid, and let not your heart be troubled.           Federal Legal Center,    Derek A Gilna, JD, MARJ, Director, 113 Mc Henry Rd. #173, Buffalo Grove, Ill 60089 (and Indiana) dgilna1948@yahoo.com (English newsletters and all inquiries, including Spanish), federallc_esp@yahoo.com (Spanish newsletter only); Blog: "Derek Gilna's Criminal Justice Musings and Reflections"

Department of Justice Seeks New "War" To Hire More Prosecutors to Counter Dubious Surge in "Domestic Terrorism"

 

DOJ Up to its Old Tricks, Seeks Additional Agents and Prosecutors to Curb "Domestic Terrorism"

 

by Derek Gilna

 

Biden's new-found appetite for criminal justice reform is being tested with a new federal Department of Justice (DOJ) initiative announced recently to fight "domestic terrorism," the newest DOJ crime "war." Criminal justice advocates like myself know that these wars end badly, with more federal employees justifying their existence and high pay by over-prosecuting or "manufacturing" crime.  (See the horrendous results of previous examples of federal prosecutorial overreach:  war on drugs; war on sex trafficking; Operation Playpen; Drug Stash Houses; not to mention prosecutions of "real estate fraud" and "medical provider fraud.") In all these instances, federal prosecutors used broadly-written federal statutes to magnify penalties for crimes that had previously been prosecuted on the state level.             Fortunately, a promising coalition of US Supreme Court justices is telling prosecutors that they have had enough with federal prosecutors' expansive interpretations of statutes, in the case of United States v Van Buren,  19-783, January 3, 2021. The 6-3 vote crossed ideological lines. Justice Amy Coney Barrett, for the majority, wrote that the Computer Fraud and Abuse Act could not be interpreted in a broad way to support the conviction of a police officer who accepted money from an FBI informant to search through a license-plate database. The court’s three liberals sided with three of its conservatives. The other three conservatives dissented.              There are no new developments on any of the Biden legislative initiatives currently sitting in Congressional Committees, as the Democrats wrestle with challenges passing their infrastructure and voting rights agenda, putting more pressure on advocates of clemency reform, which has assumed new importance.                        Various investigations, both internal and external, are quietly looking into the systemic failure of the federal prison medical system in dealing with the outbreak, management, and aftermath of COVID-19.   A March 2021 TRULINCS Survey by DOJ asked prisoners to rate that system. My guess is that upwards of 90% rated it "poor." Now what will DOJ (and Congress) do with that data? District court judges are now well aware of DOJ's medical system failures, and are still granting judicial relief, including the granting of 2241's, but only after your exhaust administrative remedies questioning institutional application of time-credits, and failures to offer timely medical care.                           Another area of investigation should be the inability of DOJ prison officials to stem the unconscionable introduction of both real and synthetic stimulants into its women's facilities, which is a threat to the health of all medically-compromised individuals in those facilities.   Why are authorities, who are well-aware of the problem, not taking action? This should be cited in any internal or external filings for relief, especially if DOJ claims that its "Action Plans" have reduced health threats to prisoners from COVID.                    Untreated post COVID complications have led to an epidemic of misery, with one Lompoc prisoner with high blood pressure, stage 2 kidney disease, and obesity complaining of nerve pain and tingling in both feet and both hands, now being designated for transfer rather than treatment. New CR petitions must emphasize the inability (and unwillingness) of DOJ to treat these lingering conditions.         There have been many favorable decisions in the circuits. In United States v. Abdulaziz, No. 19-2030 (1st Cir. June 2, 2021), the First Circuit vacated judgment imposing a five-year prison sentence upon Defendant for committing a federal firearms offense, holding that the district court erred in resolving what constitutes a "controlled substance" within the meaning of section 2K2.1(a)(2) of the United States Sentencing Guidelines," subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." The First Circuit vacated the judgment below, holding that Defendant's Massachusetts conviction was not a conviction of a "controlled substance offense" within the meaning of that term as it was used in the version of section 2K2.1(a)(2) that was applicable at Defendant's sentencing.             In United States v. Jarvis, 20-3912, (6th Cir. June 3, 2021), In 1994, Jarvis was convicted of four counts of armed bank robbery, conspiracy, and five counts of using a firearm in furtherance of a crime of violence, 18 U.S.C. 2113, 371, 924(c). The court determined that his first 924(c) firearm conviction generated a statutory minimum sentence of five years and that his other four 924(c) convictions, repeat offenses, were each subject to a statutory minimum of 20 consecutive years and sentenced Jarvis to 85 years plus 11 years on his other convictions. In 2014, the Supreme Court clarified that for aiding-and-abetting liability under 924(c) a defendant must have “advance knowledge” that a firearm would be used. Jarvis successfully moved to have three 924(c) convictions vacated for insufficient evidence of advance knowledge. The district court resentenced Jarvis to five years for his first 924(c) conviction, 20 for his second, and 15 for his other convictions. The 2018 First Step Act amended 924(c), limiting the firearm convictions that count as repeat offenses.                  Also decided in the 6th Circuit was the white-collar case of US v Hack, 19-6278, (6th Cir. June 3, 2021).  Hack pleaded guilty to conspiracy to commit bank fraud, mortgage fraud, and wire fraud. The plea agreement contained an appeal waiver. In addition to terms of imprisonment and supervised release, the court ordered Hack to pay $803,420 in restitution to two mortgage companies, as required by the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3664(f)(1)(A). The court set a payment schedule during Hack’s imprisonment and stated: Upon commencement of the term of supervised release, the probation officer shall review your financial circumstances and recommend a payment schedule on any outstanding balance. During his period of supervised release, Hack moved to modify the restitution order, citing “a one-time opportunity” to obtain financing and proposing to pay the mortgage companies $100,000 and $28,000 in lump sums, attaching declarations from the companies stating that they preferred lump-sum payments over incremental payments. The district court denied the motion, concluding that it did “not have the authority under the MVRA to modify its final Restitution Order into two reduced lump-sum restitution payments.” The Sixth Circuit affirmed, concluding that Hack’s plea agreement barred the appeal.              From Senator John Kennedy: "You can only be young once, but you can be immature forever." Be not afraid, and let not your heart be troubled.           Federal Legal Center,    Derek A Gilna, JD, MARJ, Director, 113 Mc Henry Rd. #173, Buffalo Grove, Ill 60089 (and Indiana) dgilna1948@yahoo.com (English newsletters and all inquiries, including Spanish), federallc_esp@yahoo.com (Spanish newsletter only); Blog: "Derek Gilna's Criminal Justice Musings and Reflections"

COVID Threat Lingers in Federal Prison: BOP Encouraged to Do More CARES Releases as Safer Detention Act Advances in Senate

 

Happy Memorial Day;   Remembering Our Nation's Fallen Heroes; Case Updates

 

by Derek Gilna

 

            Let us take a moment to remember and respect our fallen men and women who fought for the ideal of America as a place of freedom, equality, and hope, as well as those who served and continue to serve.   In the eloquent words of one of my clients, "I wanted to wish you a good Memorial Day weekend and day of observance. Many people take this day for granted outside as a Barbeque day and/or day off, even in prison; its thought of as a 'holiday meal' day. As a prior service combat veteran, I take this observance day to heart. Not just for the men and women who gave their all, but for the people who still serve and veterans who served with them. We may not be gone, but we are also a memory that forever is engrained in hearts."

          In Congress, there were signs of progress as the Senate Judiciary Committee on May 28, passed  the COVID-19 Safer Detention Act, by a bipartisan vote. (It is NOT yet a law.)  This will reform and broaden the Elderly Home Detention Pilot Program and compassionate release from federal prisons. According to Chairman Dick Durbin, "This legislation will give judges the same authority to review (DOJ) decision for the Elderly Home Detention program as they have for BOP's compassionate release (CR) decisions, and make other important changes to ensure these programs are used to safely reduce prison populations and protect inmates, prison staff, and their families." The bill now advances to the floor of the Senate to await a vote, with none scheduled for now. I do not expect this bill to be voted on or become law until the infrastructure and voting changes are either decided or dropped.

         In anticipation to this likely change in the law, for the past several weeks I have encouraged you to file administrative remedies to protest the stingy grants of CARES releases for qualified individuals who have served a significant portion of their sentences, had a good prison record, diligently pursued rehabilitation, and have health challenges and known COVID risk factors. Congress is clearly not waiting for DOJ to act, and is intent on giving judges another tool to release prisoners who are initially denied CARES releases. If DOJ follows the bureaucratic pattern of avoiding judicial defeats  by increasing grants of relief, as happened after the deluge of  CR court filings, this will vastly increase the pace of releases.

        And why not? The DOJ's own statistics, now widely publicized to the general public, show that the miniscule few who have violated the terms of their early-release is virtually a rounding error. This would change the face of federal prison forever, in a good way. DOJ would be encouraged to prepare prisoners for release and reintegration.   It would also spare prisoners from the "deliberate indifference" school of medical treatment, masked by deliberate "under-reporting" of serious medical conditions that appears to be a common practice at several "medical facilities," some of which are under  investigation.                                                                                                                           

      I do not expect any US Supreme Court decisions this week; those with criminal justice implications will either be released by the end of June, or relisted for the October, 2021 term.   However, there are plenty of positive appellate court cases to consider.

           In US v Murphy, 20-1411, (3rd Cir. 5-27-21),  Murphy was convicted of distribution and possession with the intent to distribute heroin and 50 grams or more of cocaine base and conspiracy. With a career-offender designation, Murphy’s Guidelines sentencing range was 360 months to life, and he was sentenced to 360 months. He sought resentencing under Section 404(b) of the First Step Act. A PSR addendum preserved the drug amounts and the career-offender designation and decreased Murphy’s sentencing range to 262–327 months. He objected to the drug amounts and the career-offender designation, arguing that the jury had only specifically found that he was responsible for 50 grams of cocaine base instead of the 595 grams in the PSR and that Maryland second-degree assault convictions were no longer career-offender status predicates. The district court concluded that the First Step Act did not permit reconsideration of either factor and sentenced Murphy to 210 months’ imprisonment. The Third Circuit vacated. The district court correctly refused to reconsider Murphy’s attributable drug amounts but Murphy was entitled to an accurate calculation of the Guidelines range at the time of resentencing, including whether he qualified for the career-offender enhancement based on the law at the time of resentencing.

            In US v Spencer, 19-2685, 19-2691, (8th Cir. 5-27-21), the court reversed the  court's denial of defendants' pro se motions to reduce their sentences under the First Step Act, and explained that Section 404(a) of the First Step Act says that covered offenses are those whose penalties "were modified by section 2 or 3 of the Fair Sentencing Act." Before the Fair Sentencing Act, defendants' crack-cocaine quantity—over 50 grams—triggered a 10-year minimum sentence. It now triggers a 5-year minimum sentence. The court concluded that the "statutory penalties for" one object of defendants' multidrug conspiracy offense "were modified" by section 2 of the Fair Sentencing Act, and that the statutory penalties for a drug-trafficking offense include all the penalties triggered by every drug-quantity element of the offense, not just the highest tier of penalties triggered by any one drug-quantity element. Defendants are eligible for resentencing.

            In US v Cook, 20-13293, (11th Cir. 5-27-21), the court vacated the district court's denial of defendant's motion for compassionate release. Defendant contends that his conditions of hypertension, latent tuberculosis, and obesity, create a high risk he will fall seriously ill or die should he contract COVID-19 in the midst of the unprecedented global pandemic. The court concluded that the district court failed to demonstrate that it considered the applicable 18 U.S.C. 3553(a) factors in denying relief. The district court's order includes nothing to suggest it considered, balanced, or weighed any of the factors supporting the grant of defendant's motion. Accordingly, the court remanded the matter for further proceedings.

            As a new COVID outbreaks hits FCI Beaumont, there is a new study from Dr. Michael Cohen, MD, "Pandemic Medical Update: Vaccines, Variants and More, " which states that, "A study publish this month in Lancet Psychiatry analyzed mental illness and physical disorders o the rain and nerves during six months following recovery from COVID infection.   They found substantial numbers of people had a wide variety of medical and mental health disorders following OCIVD-19.   Overall, about 12% of people recovered...had a new diagnosis of a neurological or psychiatric disorder.  For those who had more severe disease, 26% had a new neurological or psychiatric diagnosis...This is very troubling information..." www.pln.com, May, 2021, page 40.

            From Senator John Kennedy of Louisiana: " Our country was founded by geniuses, but it's being run by idiots."

            Be not afraid and let not your heart be troubled.

Federal Legal Center, Derek A. Gilna, JD, MARJ, Director

113 McHenry #173, Buffalo Grove, IL   60089 (and INdiana)

dgilna1948@yahoo.com, (Spanish questions welcome)

Spanish newsletter: federallc_esp@yahoo.com

Blogging at:   "Derek Gilna's Criminal Justice Musings and Reflections"