BOP to Phase 5 — full lockdown

Here’s the update from BOP:

Today, the Director of the Bureau of Prisons (BOP) ordered the implementation of Phase 5 of its COVID-19 Action Plan, effective tomorrow, April 1, 2020. In response to a growing number of quarantine and isolation cases in our facilities, the BOP will take the following actions immediately to further mitigate the exposure and spread of COVID-19. 

• For a 14-day period, inmates in every institution will be secured in their assigned cells/quarters to decrease the spread of the virus. This modification to our action plan is based on health concerns, not disruptive inmate behavior.

• During this time, to the extent practicable, inmates should still have access to programs and services that are offered under normal operating procedures, such as mental health treatment and education.

• In addition, the Bureau is coordinating with the United States Marshals Service (USMS) to significantly decrease incoming movement during this time.

• After 14 days, this decision will be reevaluated and a decision made as to whether or not to return to modified operations.

• Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and Trust Fund Limited Inmate Computer System (TRULINCS) access.

Starting in January 2020, the BOP implemented its Pandemic Influenza contingency plan, modified as an Action Plan for COVID-19. The BOP continues to revise and update its action plan in response to the fluid nature of the COVID-19 pandemic, and in response to the latest guidance from experts at the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC) and the Office of Personnel Management (OPM).

News & Notes

1.  Our District continues to shut down operations.  No more grand juries until April 27.  And, in general, no more in person hearings in criminal cases for 90 days. Video conferencing instead.  For pleas and sentencings, defendants can opt for continuances or video hearings.

2.   In California, Elizabeth Henriquez will proceed to her sentencing in the Varsity Blues case by video conference.

3. The 11th Circuit is in session this week, but it will be conducting oral argument by teleconference (not video). You can listen live here. I will be arguing on Friday. Should be interesting.

4. BOP suffered its first prisoner death over the weekend. Patrick Jones was 49 at FCI Oakdale in Louisiana. He had applied for a sentence reduction under the First Step Act but was denied. I wonder how prosecutors who are opposing these motions will feel when these people get sick and die in prison.

5. Okay, okay, enough with the bad news. Some good news! Former SDFLA AUSA Michael Sherwin, who has been working as Associate Deputy Attorney General on national security matters, has been named Principal Assistant U.S. Attorney in DC. It's a big deal. Congrats to one of the good guys!

Good news re David Lat!

He's off the ventilator, thank goodness!  And he's even posting on social media:

I don’t want to be presumptuous, since my condition is stable but still serious. I require 24/7 oxygen, I need a nurse’s help for even the simplest tasks, and I only just now progressed to solid foods. So I’m not out of the proverbial woods yet. A number of patients released from the hospital after seemingly successful fights with #Covid19 aka #coronavirus have been readmitted (and some of these patients have even died).
At the same time, I do have some good news to share (especially since a bunch of “fake news” websites in the Philippines have issued reports of my death - greatly exaggerated, I can assure you).
First, I was just transferred out of the ICU - to a floor that’s not nearly as nice, but the transfer bodes well because they save ICU beds for the sickest patients. Second, I’m doing worlds better than I was this time last time last week, when I was unconscious and intubated, having a machine breathe for me because I couldn’t do so myself.
I also don’t want to be ungrateful. And no matter how my story ends, I know that I will be forever thankful for all of the prayers and thoughts that you have sent me and my family over the past few weeks. I will also be eternally grateful to all the wonderful doctors, nurses, and other dedicated healthcare professionals who are on the front lines of our battle with #Covid19 aka #Coronavirus, here at NYU Langone Health and elsewhere.
As mentioned earlier, I’m not out of the woods yet. But I’m upbeat and optimistic, strengthened by all your thoughts, prayers, and wishes for a speedy recovery.
Much as my parents love looking after Harlan - grandparents are the babysitters who thank YOU at the end of the experience - I look forward to checking out of here before too long and being reunited with Harlan, Zach, my family, my-in-laws, and all of you, my dear friends and loved ones. Thank you once again for everything, and see you soon!
With Much Love,
David

What a great update. Here's to a speedy recovery!

“Before filing this response, though, defense counsel may want to brush up on the concepts or karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.”

That was Magistrate Judge Goodman in an order where he rightfully could not understand a lawyer opposing a motion for extension of time and for a continuance.  The whole order is below.  Judge Goodman has issued a number of good orders this week, urging lawyers to be kind hearted during this time.  Unfortunately, for many lawyers, that’s simply not possible.

Even AG Bill Barr issued a memo today saying judges should release non-violent offenders from prisons and place them on home confinement.  Come on judges.  Let’s do this.  Let’s be leaders on this issue and release prisoners who are non-dangerous.

PAPERLESS ORDER re [47] MOTION for Extension of Time to Mediate MOTION for Extension of Time to Conduct Discovery re [46] Scheduling Order,, filed by …..

Given the global COVID-19 pandemic, it is hardly surprising that Plaintiff filed [ECF No. 47] a motion to extend the mediation and discovery deadlines and all related deadlines and to reschedule the special set trial date.

Plaintiff's motion represents that Defendant objected to the request. That's right. Defendant objected to what appears to be a realistic and common sense motion to reschedule the trial and other deadlines. I had to read the certification twice in order to make sure that I was reading it correctly. 

If the motion is correct, then Defendant wants to push forward with the existing trial date and all trial-related deadlines even though no one has any idea when the Court will be able to safely resume jury trials (or when it will be safe to travel by air, to return to work or to get closer than ten feet to anyone).

Rather than guess at defense counsel's motivation, the Undersigned requires defense counsel to by March 26, 2020 file a double-spaced memorandum explaining (1) whether he did, in fact, oppose the motion to reschedule the trial and enlarge trial-related deadlines and the mediation deadline, and (2) all the reasons justifying his opposition (assuming that he did actually advise Plaintiff's counsel that he opposes the motion).

If defense counsel opposed the motion, then he is best advised to provide a comprehensive and rational explanation. Before filing this response, though, defense counsel may want to brush up on the concepts or karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.

No reply absent further Court Order. Signed by Magistrate Judge Jonathan Goodman on 3/25/2020. (J

Venezuelan President Nicolas Maduro indicted for narco-terrorism

Big news while DOJ has been pretty quiet during the virus.

There was a virtual press conference with Barr, U.S. Attorney Berman from SDNY, and our very own U.S. Attorney Ariana Fajardo Orshan.  She gave a nice shout out to Michael Nadler, Michael Berger, and Peter Forand.

From the Miami Herald:

In a stunning announcement amid the coronavirus pandemic, the Justice Department plans to announce Thursday that Venezuelan President Nicolás Maduro and other government officials have been charged with turning Venezuela into a narco-state by collaborating with a leftist Colombian guerrilla group that exported tons of cocaine to the United States.

An indictment, to be unveiled at a “virtual” news conference in Washington, D.C., accuses Maduro and other top officials in his socialist regime of conspiring with the U.S.-designated terrorist group known as the FARC so that Venezuela could be used for narcotics shipments to finance a long-running civil war against the Colombian government.

Charged along with Maduro are Diosdado Cabello, a former speaker of the National Assembly who is considered the second most powerful political figure in Venezuela, and Vladimir Padrino Lopez, the country’s minister of defense. All three Venezuelan officials face allegations of narco-terrorism, drug trafficking and weapons violations in a scheme initiated in the mid-2000s that was meant to help the Colombian rebel group while enriching themselves with cocaine-tainted bribes, according to federal authorities.

The 11th Circuit is still humming along

Appellate courts should be the least impacted through all of this mess, with judges and clerks able to work on opinions from home.  And the 11th Circuit keeps cranking them out...

Earlier this week, it agreed to hear this 4th Amendment case en banc at the urging at Judge Newsom to reconsider previous decisions on abandonment.

Yesterday, Judge Jill Pryor issued a big decision finding that a Hobbs Act robbery did not constitute a crime of violence under the Guidelines.

And today, Judge Rosenbaum issued an opinion on restitution and loss, with this fun introduction:

In Robert Louis Stevenson’s  Treasure  Island,  Jim  Hawkins memorably hunted  for  Captain Flint’s hidden treasure.  The Goonies put its own spin on treasure hunting  when  the  title  band of  friends defied One-Eyed  Willy’s  maze  of  booby  traps to find his hidden treasure  and save  their  beloved neighborhood.   But  for real-life treasure-hunting  stories,  perhaps  nothing  beats  the  quests of  the  aptly named  Mel Fisher  and his company  Treasure  Salvors,  Inc. 

Fisher  and his team  specialized  in finding and salvaging shipwrecks  of Spanish  galleons  and  other  vessels  from  the  Spanish Colonial era,  off  the  coasts  of Florida  and its Keys.   As  of  the  mid-1980s,  Fisher’s operation had  recovered  treasure worth approximately  $400 million at that time.     

Among that treasure  was Gold Bar  27,  which Fisher  donated to the  Mel Fisher Maritime  Heritage  Museum  (the  “Museum”)  in Key West,  Florida.   There,  Gold Bar 27  became  iconic,  and  three  to four  million Museum  visitors  handled it over  the years. Enter  Defendant-Appellant  Jarred  Alexander  Goldman  (sometimes truth  can be  stranger  than  fiction)  and Codefendant  Richard Steven Johnson.   In  2010, Goldman  and Johnson  stole  Gold  Bar  27  from  the  Museum.   This  appeal  requires  us to consider  the  proper  standard—we  might call it  the  gold  standard—for determining,  for  purposes of  ordering  restitution  under  the  Mandatory Victims Restitution Act,  18  U.S.C.  § 3663A (“MVRA”),  the  value  of  Gold  Bar  27.     

Today we  take  this  golden opportunity to reaffirm  that in a  case  like  this  one, where the loss  is  of  a  unique artifact  for  which  market  value  cannot  fully  compensate, courts must use  replacement  cost in  determining restitution.   While  absolute precision is not required under  the  MVRA,  the  district court must  base  its  restitution order on evidence.   And  that evidence  must show  that  the  restitution  will  make  the victim  whole—nothing  more  and nothing less.   Because  the  district court,  without the  benefit  of  our  decision  today,  did  not  ascertain  replacement value  when it determined market value  was insufficient and  then  imposed restitution,  we  vacate the  restitution  order  and  remand for  valuation  that applies  the  proper  legal  barometer to  the  gold bar  here. Goldman  also challenges  the  loss  amount used  to determine  his offense  level.   But  here,  we  part  ways with Goldman’s  analysis.   

The  district court explained that it would impose  the  same  sentence,  even if  it had the  loss figure  wrong.   For  that reason  and because  the  sentence  the  district  court imposed is  not substantively unreasonable,  we  affirm  Goldman’s sentence. 

The 11th Circuit should really re-examine this practice of affirming sentences just because the district judge says that it would enter the same sentence even if reversed.  It’s simply too easy to say that, and the truth is that judges are very unlikely to sentence above the guidelines.  If there’s a reversal on the guideline calculation, of course the defendant should get a new sentencing.

Update: Guilty verdicts in Broward federal healthcare trial

This is the one the blog covered earlier in the week here with Judge Cohn, defense attorney Joel Hirschhorn, and AUSAs Chris Clark/Lisa Miller.

 There were 23 counts and Sebastian Ahmed was found guilty of 18. The jury deliberated over the course of two days.

 One interesting story that I heard -- apparently Hirschhorn asked for a number of mistrials during the course of the trial because of the virus. And it was the defendant himself who objected on his own. Now that's insane. But there's no insanity defense left, sadly.

 Anyway, I think that was the last federal trial occurring in the country. It's anyone's guess when the next one will happen... not until late April at the earliest in this District.

Update on David Lat

We’re all rooting for David Lat, all around good guy and creator of the Above the Law blog.

He’s still on a ventilator.

And now, he’s receiving experimental medication, according to this Law.com article:

David Lat remains in critical condition, on a ventilator and sedated inside a Manhattan hospital, as doctors and his family wait to see over the next several days if the “very experimental” drug therapy he has been given to help him fight the coronavirus will work, said his husband on Monday afternoon.

“We won’t know for a few more days, whether he’s going to get better—whether this stuff [the drug therapy] is working or not,” said his husband of four and a half years, Zachary Baron Shemtob, in a phone interview.

“We’re hanging in there,” he said. “We’re just waiting and hoping.”

The initial sedation Lat was given early on Saturday, as he was put on a potentially life-saving ventilator because his oxygen levels had dropped, did not keep Lat from waking up on Saturday, “immediately opening his eyes, demanding a pen and paper and starting to write down questions, to get to the bottom of everything,” Shemtob said Monday.

“It was just David being David. It wasn’t that he was agitated, but, you know, he was curious and inquisitive,” Shemtob said. “He just wanted to be his inquisitive journalist self. It was shortly after being put on the ventilator.”

Here’s hoping for a speedy and full recovery.