Compassionate Release from Incarceration Based on COVID-19 Pandemic (4/20/20; 5/7/20)

This blog entry was updated on 5/4/20 to add a short notice discussion of Paul Daugerdas' denial of compassionate release in paragraph 5 below; and on 5/7/20 to add a reference and link to Peter Reilly's blog on the Daugerdas matter.

The Procedurally Taxing Blog has an excellent posting today on the compassionate release of a notorious tax criminal, Morris Zukerman.  Leslie Book, Court Grants Compassionate Release to High Profile Tax Felon Morris Zukerman (Procedurally Taxing Blog 4/20/20), here.  The blog entry discusses the Court’s granting Zukerman release because of his physical characteristics (75 years old, diabetes, hypertension and obesity) and close physical incarceration with other inmates that might make him particularly susceptible to COVID-19 infection and serious consequences.

Since I have never before considered the compassionate release provision, 18 USC § 3582, and have not done any independent research, I refer readers to the PT Blog entry linked above, which also has a link to the decision granting Zukerman the release.

JAT Comments:

1.  I wonder whether this and related decisions granting compassionate release in the age of COVID-19 will open the floodgates of such requests for those who, sometimes with the aid of their attorneys, conjure up some special characteristics.  (See paragraph 4 below discussing the Valentino habeas corpus proceeding.)

2.  I wonder whether the Court’s reacted too hastily to the exhaustion requirement.  As often with seeking relief from Government agencies, the statute requires that the incarcerated person first seek relief from the agency.  Zukerman did seek that relief but, rather than waiting for an answer to his request or the passage of 30 days, he filed the court proceeding three days after the request.  Had that process been allowed, perhaps the Bureau of Prisons could have found some accommodation to meet at least some of the concerns claimed by Zukerman.  But, the court just blew past the exhaustion requirement based on his physical characteristics, the conditions of his incarceration and the COVID-19 pandemic.  In my posting earlier today, I said:  "(Presumably, the Bureau of Prisons had time in the court proceedings to offer the court its views as to why it believed Zukerman were not at disproportionate risk.)"  I have just reviewed Zukerman's letter response to the Government's opposition, CourtListener here, and quote from it on this issue (pp. 2-3):

3. The government writes that BOP is “meaningfully address[ing] the risks posed by COVID-19” and “tak[ing] seriously the threat the pandemic poses to current inmates.” [*3] Letter at 4. We have no doubt that BOP is trying to mitigate the spread of COVID-19, but the claim that the problem is under control rings hollow. The truth is that in institutions like Otisville controlling the spread of COVID-19 is a mission impossible. Social distancing cannot be practiced. Inmates live in close quarters, share one large bathroom with only a handful of stalls and showers, and eat elbow-to-elbow at three-foot wide tables in the dining hall. n2  That is a recipe for rampant infection. None of us would allow an elderly and vulnerable loved one to live in such quarters if an alternative existed. See United States v. Rodriguez, 03-Cr.-271-AB-1 (E.D. Pa. Apr. 1, 2020), ECF No. 135, at 16 (“prisons are ill-equipped to prevent the spread of COVID-19; the crowded conditions, in both sleeping areas and social areas, and the shared objects (bathrooms, sinks, etc.) . . . facilitate transmission”).n3
   n2  On March 31, 2020, BOP directed that inmates in all institutions be confined to their cells for 14 days “to decrease the spread of the virus.” Bureau of Prisons COVID-19 Action Plan: Phase Five, Mar. 31, 2020, https://www.bop.gov/resources/news/20200331_covid19_action _plan_5.jsp. But Otisville does not have cells. Instead, inmates have been “quarantined” to their dormitories and common areas. In other words, their living conditions remain very much the same.
   n3  BOP’s containment measures have already proved inadequate and its counting of infected cases suspect. At FCI Oakdale in Louisiana, for example, the BOP listed eight COVID-19 cases as of March 29 and the Washington Post reported 31. Rodriguez, 03-Cr.-271-AB-1 (E.D. Pa. Apr. 1, 2020), ECF No. 135, at 17. BOP has now stopped testing for the virus at the facility because the outbreak is so widespread. Fifteen Oakdale inmates have been hospitalized and three have now died. See Westwood, Rosemary, “Third Federal Inmate Dies from COVID-19,” NPR, Apr. 1, 2020. The numbers in other facilities are growing exponentially. According to the BOP website, on March 29 there were 27 coronavirus cases within its facilities; only three days later that number has grown to 94.

The Government's letter position (CourtListener here) to which the foregoing responded:

 Even assuming the Court had discretion to waive the statutory exhaustion requirement (and it  does not, for the reasons stated above), there are nonetheless sound reasons to require the defendant to nonetheless comply with that requirement and pursue a BOP review of his case, particularly whereas here the defendant seeks to rely on factual claims about his health and conditions of confinement as to which there is presently no fully developed record. Indeed, the BOP is uniquely positioned to assess and provide the Court with detailed information about the defendant’s present health condition, his behavior since being incarcerated, his recidivism score, the conditions of confinement at Otisville, and the relative merits of the defendant’s claim as opposed to the many others being made by similarly situated defendants at Otisville and across the country. Moreover, to the extent the defendant seeks to rely on recent guidance promulgated by the Attorney General – guidance that does not, on its face, even appear to apply to this defendant or a motion made under Section 3582 – that guidance was in any event provided to the BOP for the BOP’s use in conducting the very sort of administrative review the defendant now seeks to circumvent. 

To be sure, the COVID-19 pandemic warrants serious attention. But the defendant has offered no evidence to suggest the BOP is not taking the pandemic seriously or will not meaningfully consider his administrative request. To the contrary, the BOP has made significant efforts to respond. In particular, since at least October 2012, BOP has had a Pandemic Influenza Plan in place. See BOP Health Management Resources, available at https://www.bop.gov/resources/health_care_mngmt.jsp. Moreover, beginning approximately two months ago, in January 2020, BOP began to plan specifically for coronavirus/COVID-19 to ensure the health and safety of inmates and BOP personnel. See Federal Bureau of Prisons COVID-19 Action Plan, available at https://www.bop.gov/resources/news/20200313_covid 19.jsp. As part of its Phase One response to coronavirus/COVID-19, BOP began to study “where the infection was occurring and best practices to mitigate transmission.” Id. In addition, BOP set up “an agency task force” to study and coordinate its response to coronavirus/COVID-19, including using “subject-matter experts both internal and external to the agency including guidance and directives from the [World Health Organization (WHO)], the [Centers for Disease Control and Prevention (CDC)], the Office of Personnel Management (OPM), the Department of Justice (DOJ) and the Office of the Vice President. BOP’s planning is structured using the Incident Command System (ICS) framework.” Id.
[*4] 

 On April 1, 2020, the BOP, after coordination with DOJ and the White House, implemented its Phase Five response in order to mitigate the spread of COVID-19. https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp. As part of the Phase Five response, the BOP (a) will secure inmates in their assigned quarters for a 14-day period to decrease the spread of the virus, (b) continue to provide inmates access to programs and services that are offered under normal operating procedures, to the extent practicable, and (c) coordinate with the U.S. Marshals Service to reduce the movement of incoming inmates. The BOP will reevaluate Phase 5 after the 14-day period ends. Id. These steps belie any suggestion that BOP is failing to meaningfully address the risks posed by COVID-19 or take seriously the threat the pandemic poses to current inmates. The defendant, moreover, has not demonstrated that there is a crisis at Otisville such that his own health is at immediate risk. See, e.g., Gileno, 2020 WL 1307108, at *4 (“With regard to the COVID-19 pandemic, Mr. Gileno has also not shown that the plan proposed by the Bureau of Prisons is inadequate to manage the pandemic within Mr. Gileno’s correctional facility, or that the facility is specifically unable to adequately treat Mr. Gileno.”). Accordingly, the circumstances presented by the defendant do not warrant the relief he seeks.  Although this Court recently granted a motion for compassionate release in United States v. Perez, 17 Cr. 513 (AT) (Dkt. 98) (Apr. 1, 2020), that case is easily distinguishable. In Perez, the defendant, a prisoner at the Metropolitan Detention Center, was serving a three-year sentence for kidnapping and conspiracy that was scheduled to end on April 17, 2020. The defendant presented  unusual factors that weighed in favor of his release, including that (1) the defendant was at risk of experiencing serious complications from COVID-19 due to medical  complications arising from “two vicious beatings” while he was incarcerated, (2) his three-year sentence was scheduled to end within days, and (3) the Government did not object on the merits to the defendant’s release. The Court observed, against the backdrop of those unique circumstances, that “even a few weeks’ delay carries the risk of  catastrophic health consequences for [the defendant],” and “requiring him to exhaust administrative remedies, given his unique circumstances and the exigency of a rapidly advancing pandemic, would result in undue prejudice and render exhaustion of the full BOP administrative process both futile and inadequate.” Id. at 4-5. 

 The facts presented by Zukerman are entirely different. First, Zukerman has completed only approximately half of the 70-month term of imprisonment imposed by the Court. Even if he receives the benefit of recent sentencing reform legislation, he still would not be released for more than another year, until May 2021. Accordingly, this is not a case in which “exhaustion of the full BOP administrative process” would be “both futile and inadequate.” Id. Second, unlike in Perez, there are not extraordinary and compelling reasons for release because Zukerman has not demonstrated that there is a crisis at Otisville such that his health is at immediate risk. In fact, the health issues identified by Zukerman were present, fully known, and considered by the Court when he was sentenced in May 2017. Third, as set forth below, Zukerman is not a compelling candidate for release given his extraordinarily serious offense and the need for deterrence, as the Court addressed at sentencing.  

The CourtListener Docket Entries are here.

I am not sure that this joining of the issues was sufficient to support the Court's action, but as I said before this is not my area.  Fortunately, I don't have any incarcerated clients, regardless of what the standards are for compassionate release.

3. Those wanting more detail about Zukerman’s underlying criminal proceedings might look at the following Federal Tax Crimes Blog entries (reverse chronological order):

• $10 Million Fine in Tax Crimes Case Affirmed on Appeal (Federal Tax Crimes Blog 7/28/18), here.
• Second Circuit Makes Limited Remand for Sentencing Court to Explain Tax Crime Fine Variance to $10 Million from High Guideline Amount of $250,000 (Federal Tax Crimes Blog 2/7/18), here.
• Update on the Zukerman Indictment - Potential Waivable Conflicts of Interest of Advocate as Witness (Federal Tax Crimes Blog 5/28/16; 6/21/16), here.
• Prominent and Very Rich Investor Indicted in SDNY (Federal Tax Crimes Blog 5/24/16), here.

4.  In reading the Zukerman compassionate release decision, I was reminded of a similar recent claim for release based on the risk of COVID-19 in an extradition incarceration setting.  I previously discussed a case thrashing around in the Southern District of Texas where the Government seeks extradition of a tax attorney, Joseph Valentino, to the Netherlands for his conviction in the Netherlands for tax-related Netherlands crimes.  See U.S. Tax Attorney Denied Habeas Corpus in Extradition Proceeding Based on Netherlands Criminal Tax Conviction (2/10/20), here.  On 4/15/20, the Court denied Valentino’s emergency renewed motion for release “in light of the COVID-19 pandemic.”  Valentino v. United States Marshal (S.D. Tex. No. 4:20-CV-304 Dkt 34 Order dated 4/15/20), here.  I offer the following select excerpts:

Valentino’s renewed motion for release relies on two circumstances that have changed since the Court’s previous denial. First, Valentino argues that release is  [*2] appropriate based on the current COVID-19 pandemic, in light of his age (73) and hypertension (Dkt. 17; Dkt. 23, at 6). Second, he relies on an email from the Dutch prosecutor on Valentino’s underlying criminal case in the Netherlands, who states that he does not oppose house arrest for Valentino given the pandemic (Dkt. 25-1, at 1). 

* * * * 

Valentino’s renewed motion first argues that the global COVID-19 pandemic is a new “special circumstance” sufficient to warrant bail in the extradition context. He cites to infection rates for federal inmates, which have risen rapidly, and argues that, because many inmates are untested, the actual number of infections is unknown. n1  As multiple  [*3] recent judicial opinions have noted, the risk of coronavirus transmission is especially high in detention facilities.n2 Respondent has submitted the BOP’s COVID-19 plan, which recently entered Phase V (Dkt. 22-3), and argues that the BOP is moving aggressively to contain the outbreak and prevent its spread. Valentino cites to one case in the extradition context in which the court for the Northern District of California granted conditioned release to a 74-year-old extraditee, finding that the person was “vulnerable” to the coronavirus and that the risk posed a “special circumstance” under the facts of the case. See In re Toledo Manrique, 2020 WL 1307109 (N.D. Calif. Mar. 19, 2020) (considering motion from extraditee who had not yet stood trial in Peru).
   n1 See Dkt. 23, at 1-2 (number of infected federal inmates increased from 3 on March 24, 2020, to 57 on April 1, 2020); Dkt. 25, at 2 (number of infected federal inmates increased to 75 on April 2, 2020).
   n2 See, e.g., United States v. Rodriguez, 2020 WL 1627331 (E. D. Penn. Apr. 1, 2020) (granting compassionate release under 18 U.S.C. § 3582(c) to an inmate with underl ying health conditions based on COVID-19 pandemic and noting recently confirmed infections at the inmate’s facility); United States v. Underwood, 2020 WL 1529160, at *2-*3 (D. Md. Mar. 31, 2020) (acknowledging “significant potential” for the coronavirus to enter the defendant’s detention facility but holding that court lacked authority to grant a furlough under 18 U.S.C. § 3622); United States v. Kennedy, 2020 WL 1493481 (E.D. Mich. Mar. 27, 2020) (granting temporary release to a pretrial detainee under 18 U.S.C. § 3142 based on the increased risk of infection in detention facilities and the defendant’s need to prepare his pre-sentencing defense).

The parties agree, and the Court’s recent inquiries to FDC Houston confirm, that there currently are no inmates at FDC Houston who have tested positive for coronavirus. See Dkt. 22, Dkt. 30. Additionally, Valentino does not identify any actual deterioration in his health or any serious medical need that cannot be met at his facility during the pandemic. His general arguments based on the pandemic, without any specific identified risks to him, do not suffice as a “special circumstance” under the authorities cited above. Put simply, there is no evidence of immediate danger to Valentino at FDC Houston. If his age and hypertension were sufficient to warrant a special circumstance, without any [*4] specific identified risk, then such circumstances would be generally available to all senior inmates, and would not require an “extraordinary” showing. Cf. In re Extradition of Smyth, 976 F.2d 1535, 1535-36 (9th Cir. 1992) (special circumstances must be extraordinary and may not rely on factors applicable to all defendants facing extradition).

The Court also noted (Slip Op. 5)  in denying release that “Valentino is a fugitive with a history of avoiding imprisonment in the Netherlands, see Dkt. 9, at 13 n.1, and has been certified as extraditable based on his conviction there.”  The cited footnote and text for the footnote in the earlier order are:

The record before Judge Smith disclosed that Valentino was 71 years old, had significant ties to the community, and continued to have an active legal practice. He did not have a passport and had not traveled out of the United States since 2004, or earlier. n1 Valentino also argues that he complied with all conditions of release over a 20-month period and promptly surrendered himself to the custody of the United States Marshals when ordered to do so by Magistrate Judge Bray.
   n1 Valentino asserted in oral argument that he was not “running from justice,” but was instead not running “toward injustice.” At the detention hearing on April 20, 2018, the Government argued that Valentino chose not to leave the country or maintain his passport to evade detection by the Dutch authorities. See Transcript of Detention Hearing at 47:20–22, In re Extradition of Valentino, No. 4:18-mj-0146 (S.D. Tex. April 20, 2018), Dkt. 21 (Q: “[Y]our decision then was to remain in the United States to avoid the risk of being imprisoned in the Netherlands.” A: “Yes.”)

In short, Valentino was willing to conform his movement in order to avoid trial and incarceration in the Netherlands and that certainly does not look good in his argument that he might not do likewise to avoid extradition to the Netherlands by fleeing the U.S. or otherwise becoming unlocatable if he were released.

Added 5/4/20 10:00am (Updated 5/7/20 9am):

5.  Reuters reports that Paul Daugerdas, an attorney and kingpin of criminal tax shelter promoters, was denied compassionate release because of the coronavirus risk but that the judge did recommend that the Bureau of Prison grant a temporary furlough which would require return to prison when the risk mitigated.  Brendan Pierson, IN BRIEF: Judge denies release, urges furlough for lawyer imprisoned for massive tax fraud (Reuters 5/1/20), here.  Daugerdas has been a frequent subject of posts on this blog (blog entries referring to Daugerdas are here.) The Judge's action has not yet appeared on Pacer.  Judge Pauley's opinion is here (can be downloaded but cannot cut and paste from the pdf).  If I feel that another separate blog entry would be helpful, I will post it.  Update:  Peter Reilly has this well-written post on Daugerdas and Judge Pauley's opinion:  Judge Urges Prison Furlough For Author Of “Biggest Tax Fraud Ever” (Forbes 5/6/20), here.