Opinion
20-Cr-202 (LAP)
04-22-2020
Re: USA v. Jones (Defendant Keith Lynch)
DAVID K. BERTAN ATTORNEY AT LAW
The Government shall respond by letter no later than April 27, 2020. SO ORDERED.
/s/ 4/22/2020
DAVID K. BERTAN ATTORNEY AT LAW
Via ECF
Hon. Loretta A Preska, United States District Judge
Southern District of New York
500 Pearl Street
New York, NY 10007-1312 Hon. Dear Judge Preska:
I represent Mr. Lynch in the above matter. I am submitting this letter motion as a request for this Court to issue an order granting bail to Mr. Lynch on such conditions as the Court deems appropriate.
Mr. Lynch was arrested and presented before the Southern District on March 17, 2020. He was charged with Hobbes Act Robbery, Conspiracy to Commit Hobbes Act Robbery, and Narcotics Conspiracy. He was arraigned before the presiding Magistrate Judge, and we consented to detention without prejudice. The arraignment was conducted in one of the largest courtrooms in the building to allow for social distancing.
Under cases interpreting the Bail Reform Act, a court should "bear in mind that it is only a 'limited group of offenders' who should be denied bail pending trial. United States v. Shakur, 817 F.2d 189, 195 (2d Cir. 1987) (Citations omitted). Under the Bail Reform Act, a court has the inherent power to release a defendant on their own recognizance, or, if the Court deems it appropriate, under the least restrictive conditions that reasonably assure the presence of the defendant and protect the safety of the community. 18 U.S.C. § 3142 (c)(1)(B). A defendant can be detained without bail only when there are no conditions that can reasonably assure the defendant's appearance or the safety of the community. 18 U.S.C. §3142 (e)(1).
In cases where a defendant is charged with an offense under the Controlled Substances Act that has a maximum term of imprisonment of 10 years or more, the Bail Reform Act presumes detention. However, that presumption is rebuttable by a defendant who can provide evidence he does not present a danger to the community or a risk of flight; the Government bears the burden of persuading a court, by clear and convincing evidence, that the defendant presents a danger to the community, and by a preponderance of the evidence that he is a flight risk. United States v. Hoey, 11 CR 337 (PKC), 2014 WL 572525 (SDNY 2014).
In considering bail determinations, the Court must consider the factors listed in 18 USC § 3142 (g), such as: the nature and circumstances of the offense, the weight of the evidence, the history and characteristics of the defendant, and the nature and seriousness of the danger to any person or the community that would be presented by the defendant's release.
Where a court has found that a defendant should be detained, the court nonetheless has the power to permit temporary release of a defendant if necessary to allow the defendant to prepare a defense, or for other compelling reasons, such as medical conditions. 18 USC § 3142 (i). See United States v. Stephens, 15 CR 95 (AJN), 2020 WL 1295155 (SDNY 2020) (conditions relating to COVID-19, including restrictions on legal visits, warrant temporary release).
Under 18 USC 3145 (c), a person subject to detention "maybe ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate." In United States v. DiSomma, 951 F.2d 494 (2d Cir. 1991), the Court found that "exceptional reasons" are those that "present a unique combination of circumstances giving rise to situations that are out of the ordinary." Id. at 497.
Since Mr. Lynch's initial presentment and arraignment, the COVID-19 pandemic has taken over much of the country, with New York City as its epicenter. As of April 20, 2020, over 11,000 people in New York State died from COVID-19.
There is little doubt that COVID-19 presents tremendous risk to inmates and staff in any jail or prison. Prisons are effectively petri dishes for the growth of infectious diseases. Inmates are housed under extremely close quarters, with no opportunity for social distancing. Under current conditions at the jail, inmates are locked down for most of the day, being released for a few hours every second or third day for short periods. In those few minutes, the inmates must shower, make phone calls, check e-mails if possible, and otherwise take care of their personal needs. Guards are wearing limited PPE, while inmates have none.
Testing in the jails is almost non-existent. According to the most recent report from the warden of MDC, 11 inmates tested, 5 positive. No inmates have been tested since Friday, April 10, 2020 In total, the BOP now has 449 inmates who have tested positive, up from one inmate on March 19, 2020. 208 staff members have tested positive. There is no question COVID-19 is spreading throughout the BOP; the only reason the number appears low is because there is almost no testing. As of yesterday, 22 inmates have died from the virus.
https://www.bop.gov/coronavirus/
An article from the Daily News, dated April 20, 2020, provides more insight. According to the News, the reported figures are suspect. A union official stated that the BOP's number was articially low because it did not include workers who were tested on their own, not through the MCC. The official mentioned the case of one guard who, despite showing symptoms of the virus, was told to return to work, and was ultimately found to have COVID-19
In the Westchester County Jail, as of April 5, 2020, there were 12 inmates with COVID-19; as of April 6, that number had increased to 23, while 60 staff members were similarly infected.
BOP has gone through 6 "action plans" in an attempt to limit the spread of COVID-19. These plans ranged from pro forma screening at the beginning of the pandemic, to staggered meal times and activity times in order to limit gatherings of inmates, to lockdowns that have inmates confined to their cells for most of the day. The latest "action plans" merely extend those lockdowns. Sanitizing equipment, face masks, gloves, or other PPE are not provided to inmates. At this point, the action plans simply help the virus to spread within the quarantine areas.
By way of example, the New York City Department of Corrections has released over 900 inmates from Rikers Island, yet the virus continues to spread throughout that facility. Scores of NYC Corrections officers have contracted the virus, and several have died. In late March, Rikers Island Chief Physician Ross McDonald noted that COVID-19 cases increased from 1 to 200 in just 12 days.
Mr. Lynch has advised me he was being locked down in his cell for most of the day, confined in a small space with another inmate who was exhibiting signs of extreme illness, including coughing up what appeared to be blood. Mr. Lynch's requests for additional Asthma medication went ignored from April 11 until April 15, when I emailed the legal department at the MCC and was advised his prescription was being refilled that night. I am attaching a photograph of Mr. Lynch's recent discharge report from Harlem Hospital on December 24, 2019, showing he suffers from chronic persistent asthma, and was prescribed Albuterol, Prednisone, and Fluticasone to treat his condition. As of Thursday, April 16, Mr. Lynch began suffering chest pains.
Mr. Lynch's sister and I have diligently attempted to obtain his recent medical records, detailing his asthma condition, but due to COVID-19, medical records departments have been overwhelmed and are unable to comply with our requests.
Mr. Lynch has advised me that MCC has not provided products to clean his two-person cell. He and his cell-mate are locked down, with 1.5 hours every three days to shower, gather food, make calls, and read and answer emails. Every dorm in MCC has inmates who have tested positive for COVID-19, and the only medical "treatment" is taking temperatures daily.
If released, Mr. Lynch would abide by any reporting conditions this Court would impose. Mr. Lynch has access to an iPhone for video confirmation and reporting on a daily basis. His sister and his girlfriend are willing to co-sign a bond. He would live with his sister in Bronx County. On a more personal note, Mr. Lynch's girlfriend is due to deliver their child in a few weeks.
COVID-19 has caused massive changes in our society. While social distancing and shutdowns have slowed its spread here in New York, its presence in the Federal prison system is increasing. It has increased by several thousand percent in the Bureau of Prisons within a month, and can only get worth. There is no testing within the BOP; social distancing is impossible, quarantines have infected and uninfected prisoners in the same dorm, and the BOP's response is to continue the lockdown.
Mr. Lynch is medically compromised. He is living in a virtual petri dish of infection, with little opportunity to even sanitize his hands, much less keep appropriate distances from other inmates. Under the present circumstances, including his medical condition and the spread of the virus, temporary release is appropriate and humane. Accordingly, I am respectfully requesting that this Court issue an order directing the temporary release of Mr. Lynch, under such conditions as the Court deems appropriate.
Thank you for your consideration in this matter.
Very truly yours,
-S
David K. Bertan DKB
cc: AUSA Bagliebter (Via ECF)
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