US v. Baldon, No. 18-10411 (4-21-20)(Bennett, Lee, & Piersol). This is a categorical guidelines decision involving California’s carjacking statute, 215. The defendant pled guilty to being a prohibited felon with a firearm. The sentencing court enhanced upwards for a prior COV: the state carjacking. The 9th found it was not a COV, but held a prior precedent was abrogated.

In Stokeling v. US, 139 S. Ct 544 (2019), the Supremes revisited Johnson and clarified that “any force” is force enough for a COV if it will overcome a victim’s resistance. Prior 9th precedent, Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018), is irreconcilable with this holding and so is abrogated.

However, the state statute is still not a categorical COV for a different reason.  The state statute is overbroad.  It criminalizes “threat to property” in carjacking and not simply threat to the person. The state defines its carjacking more broadly than 4B1.2(a)(1) by not limiting fear solely to persons. The state jury instructions so define the act. And, there is a state court decision. It is not beyond the realm of imagination, as the government argues.  The offense is also not a match with the enumerated offenses.

Substantively, the 9th finds sufficient evidence that the defendant possessed the gun or knew of its presence.

The sentence is vacated and remanded.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/21/18-10411.pdf

US v. Costanzo, No. 18-10291 (4-17-20)(Hawkins w/Owens & Bennett).  Note: This is an Az FPD case. The 9th affirms convictions in a bitcoin money laundering case. The defendant was convicted of using bitcoin to supposedly launder funds from a criminal enterprise. The appeal raised whether there was interstate commerce. The 9th held there was: the internet is an instrumentality that affects interstate commerce. There was also a website (hosted abroad) and…a digital wallet.  Alas, in the light most favorable to the government, there was sufficient evidence.

Other issues were decided in a memorandum.

This was a hard fought trial by AFPD Maria Weidner and a clever appeal by AFPD Dan Kaplan, both of the AZ FPD.  Although the defendant lost, he at least got to watch oral argument: he had already been released.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/17/18-10291.pdf

 

Case o' The Week: The Ninth Giveth and SCOTUS Taketh Away (then the Ninth Giveth Again!) - Baldon and California Carjacking

Hon. Judge Mark Bennett

  Lost a win, then won again!

United States v. Baldon, 2020 WL 1921963 (9th Cir. April 21, 2020), decision available here.

Players: Decision by Judge Bennett, joined by Judge Lee and D.J. Piersol.

Facts: Baldon pleaded guilty to possession with intent to distribute meth, in violation of 21 USC § 841(a)(1) and (b)(1)(C). Id. at *1. Using a “modified categorial approach,” the district court looked at charging documents for Baldon’s prior California carjacking convictions, to determine whether they were crimes of violence under USSG § 4A1.1(e). Id. at *2. (The carjacking statute is California Penal Code Section 215).

  After finding the prior convictions were crimes of violence, the district court imposed a two-point increase to Baldon’s criminal history, and sentenced Baldon to 184 months. Id.

   A previous Ninth Circuit decision, Solorio-Ruiz, had held that California carjacking is not a crime of violence under a different statute. See Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018). See id. at *2. After sentencing, the Supreme Court decided Stokeling v. United States, –––U.S. ––––, 139 S. Ct. 544, 202 L.Ed.2d 512 (2019). On appeal, the government argued Stokeling undermined the rational of Solario-Ruiz.

Issue(s): “[W]hether Baldon’s prior convictions for carjacking under section 215 1 of the California Penal Code qualify as crimes of violence under U.S.S.G. § 4A1.1(e) . . . .” Id. at *1. “Can a section 215 conviction be based on fear of injury to property alone?” Id. at *5.

Held: The Supreme Court’s clarification of ‘violence force” in Stokeling as “any force sufficient to overcome a victim’s physical resistance) is “clearly  irreconcilable” with our reasoning in Solorio-Ruiz. Our  opinion rested on the analytical distinction between substantial and minimal force. This distinction no  longer exists. See Ward v. United States, 936 F.3d 914, 919 (9th Cir. 2019). As a result, Solorio-Ruiz’s holding is no longer good law.” Id. at *3.

 But . . .

  “We hold that section 215 is not a categorical crime of violence, and thus the district court erred in calculating Baldon’s sentence.” Id. “Baldon argues that section 215 may be violated through fear of injury to property alone, without any fear of injury to a person, and therefore, the statute “criminalizes a broader range of conduct than the federal definition captures.” Edling, 895 F.3d at 1155. We agree.” Id. at *5.

Of Note: The Ninth giveth, the Ninth taketh away. While Baldon won the “crime of violence” issue, he lost a challenge to a two-level enhancement for possessing a gun during the offense. See id. at *8 (citing USSG § 2D1.1(b)(1)). The gun was in a backpack that contained drugs, found in a storage unit tied to Baldon. Id.   

  Distinguishing some (good) Ninth law, Judge Bennet finds that Baldon has “constructive possession” of the gun, and upholds the two-level bump. Id. at *9. The gun-increase under Section 2D1.1 is a fuzzy, fact-specific spectrum: for better or worse, Baldon is another entry in that continuum.

How to Use: The government beefs about the Ninth’s carjacking decision, complaining there have been no published California decisions citing the statutory definition of fear (that is, no decisions permitting a carjacking conviction when there was fear of injury to property). Id. at *6. Judge Bennett is unimpressed. As he explains, “[W]e can rely, and have previously relied, on unpublished California cases to show that the state has applied the statute in a non-generic manner. . . . And, importantly, the jury instructions routinely used by California courts include fear of injury to property. It would be one thing if the fear of injury to property element were simply invented by creative defense lawyers. It is quite another when that element is part of the standard California jury instructions that are perhaps given in every case.” Id. at *8 (citations omitted).

  Use Baldon to brush back on the government’s unduly restrictive view of the state law, used to show a “realistic probability” that a state offense is broader than the generic definition of a crime.

                                               

For Further Reading: “As district attorneys around the Bay Area are breaking character and releasing hundreds of pretrial detainees to prevent the spread of COVID-19 in jails, the local wing of the U.S. Department of Justice has taken a strikingly different tack. Amid the global pandemic — and as cases of the novel coronavirus mount across California and the United States — the U.S. Attorney’s Office for the Northern District of California has refused to release almost any of the more than 400 federal inmates held in the Santa Rita Jail, most of whom have been charged with crimes but not yet convicted.” Nate Gatrell, Santa Rita Jail houses hundreds of federal detainees. Despite COVID-19 outbreak, U.S. Dept. of Justice has opposed releasing all but one, San Jose Mercury News, Apr. 24, 2020. 

  For a thoughtful piece on a deeply troubling policy from the NorCal USAO, see Mr. Gatrell’s article here.

Image of the Hon. Judge Mark Bennett from http://the.honoluluadvertiser.com/dailypix/2008/Nov/21/hawaii81121049V3_b.jpg

Image of "Free them All Empty Santa Rita" from https://www.vox.com/2020/4/22/21228146/coronavirus-pandemic-jails-prisons-epicenters 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: C.O.V. (without the "V") - Dominguez and Attempted Hobbs Act Robbery as Crime of Violence

  Dissent's cordial contempt, for attempt, attempt.

United States v. Monico Dominguez, 2020 WL 1684084 (9th Cir. Apr. 7, 2020), decision available here.

Players: Decision by Judge Silverman, joined by visiting S.D. District Judge Anello.

  Compelling dissent by Judge Nguyen.

  Hard-fought appeal by ND Cal CJA attorney Gene Vorobyov.  

Facts: Dominguez and a co-conspirator robbed a “Garda” armored car warehouse and made off with nearly a million dollars. Id. at *1. They were not caught.

  About a year later, an informant tipped the FBI off to Dominguez’s plans to pull off another armored car robbery. Id. at *2. The FBI set up a fake crime scene, to make it difficult for Dominguez to drive near the warehouse.

  Armed with a pistol, Dominguez drove to the warehouse to commit the robbery – but called the snitch and nixed the caper after getting within a block, and encountering the FBI “crime scene.” Id.

  He was arrested the next day, and charged with – among other things – attempted Hobbs Act robbery of the warehouse, and a Section 924(c) charge based on that attempt. Id.

Issue(s): Is attempted Hobbs Act robbery a “crime of violence” that will support a Section 924(c) charge?

Held: “We hold that attempted Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *8.

Of Note: With a polite tone and brutal logic, Judge Nguyen’s dissent tears apart the reasoning of the majority’s “attempt” holding. Id. at *9 (Nguyen, J., dissenting). She starts with the obvious: an attempted Hobbs Act robbery can be committed without any actual use, attempted, use, or threatened use of physical force. Id. A defendant can go down for attempted Hobbs Act robbery even if a “substantial step” towards that crime does not involve “physical force” acts necessary for a “crime of violence” designation. Id. at *10. Judge Nguyen then explains how the majority’s analysis “impermissibly bootstraps a defendant’s intent to commit a violent crime into categorizing all attempts of crimes of violence as violent crimes themselves.” Id. at *11.

  Judge Nguyen’s analysis is spot on: this decision should go en banc. Efforts underway for a PFREB.

How to Use: The majority conspicuously avoids deciding whether “[c]onspiracy to [c]omit Hobbs Act robbery is also a crime of violence under 18 U.S.C. § 924(c)(1)(A).” Id. at *8. (Judge Nguyen insinuates the majority’s dodge allowed it to avoid an irreconcilable conflict: the government conceded that conspiracy to commit Hobbes Act robbery is not a crime of violence. She rightly asks, “If conspiracy and attempt have the same intent requirement, how, under the majority’s approach, could the result be different? The majority doesn’t say.” Id. at *11.)

  In any event, seize the government’s concession in Dominguez: conspiracy to commit Hobbs Act robbery is not a crime of violence supporting a Section 924(c) charge.

                                               

For Further Reading: Over two thousand inmates have tested positive for COVID-19 in Ohio prisons. See article here. Over 1,800 inmates have tested positive in one Ohio prison alone. Id. Why has California generally, and Santa Rita Jail specifically, not seen Ohio’s numbers of positive tests? Because Ohio is “testing everyone -- including those who are not showing symptoms – [and is] getting positive test results on individuals who otherwise would have never been tested because they were asymptomatic.” Id. (emphasis added).

   Santa Rita Jail, by marked contrast, is not testing its entire inmate population: its report of positive cases is therefore radically under-inclusive. See Santa Rita Jail COVID-19 website here. (reporting 33 positive inmate and staff cases); see also “Asymptomatic coronavirus cases at Boston homeless shelter raise red flags, available here. 

  For graphs showing the alarming rates of (underreported) positive tests in Santa Rita, see ND Cal APFD’s Candis Mitchell’s analysis here. 

Image of Garda armored car from https://abcnews.go.com/US/fbi-men-shootout-rob-armored-car-broad-daylight/story?id=64822253  

Image of Santa Rita Jail wire fence from https://www.berkeleyside.com/2020/04/01/in-covid-19-move-alameda-county-cut-its-jail-population-a-new-state-policy-could-undermine-that

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

US v. Dominguez, No. 14-10268 (4-7-20)(Silverman w/Anello; partial dissent by Nguyen). This is a pretty interesting Hobbs categorical issue. The panel affirms various convictions related to a Hobbs robbery, 924(c), money laundering, and an attempted Hobbs robbery as having sufficient evidence. 

The interesting categorical question as to Attempted Hobbs robbery is whether it is a categorical crime of violence under the elements clause of 924(c)(3)(A). The majority finds it fits because when a substantive offense is a crime of violence under the 924 section, an attempt is a COV because an actual substantive step occurred, and there was a specific intent. This holds true even if the substantive step was not a step involving violence. The section also explicitly includes completed crimes but felonies that have an “attempted use” of force. An attempted Hobbs Act robbery has to include physical violence or a threat of violence. The 9th arguably falls into line with two other circuits (7th and 11th). 

Nguyen’s partial dissent argues that under a categorical approach, an attempted Hobbs Act robbery can be committed without any actual use, attempted use, or threatened use of physical force. It makes no sense to find that just because when the substantive offense is a COV, an attempt, under the categorical approach, also must be.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/07/14-10268.pdf

May v. Ryan, No. 17-15603 (3-27-20)(Friedlandw/concurrences by Ikuta & Friedland; dissent by Block). The jury hung; the new trial set; the defendant released when the jury sent a note to the court and said they still wanted to deliberate. Defense counsel failed to object. The jury deliberated and returned guilty verdicts on sexual molestation. The defendant received a virtual life sentence. 

In this habeas appeal, petitioner got relief, only to have the panel grant rehearing, and now, in this opinion, relief is denied.

The majority held that the failure to object was not IAC. Counsel could have reasoned that his best shot was on the trial that occurred rather than the retrial. 

Concurring, Ikuta stresses the limited role of federal habeas review. Such limited review is appropriate to the federal judicial system.

Concurring, Friedland is dismayed at the guilty verdict, and chafes at the limited role of federal habeas review, able to grant relief only for the most egregious constitutional violations.

Dissenting, Block argues that the majority fails to apply Strickland’s IAC analysis appropriately. Deference is given to counsel’s informed decisions.  Here, counsel’s failure to object was anything but informed. It was deficient.

Robert McWhirter, a member of the Phoenix CJA panel, was on the petitioner’s brief with others. It is a tough disappointing loss after a valiant effort. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/27/17-15603.pdf

2. Berryman v. Wong, No. 10-99004 (3-27-20)(per curium w/McKeown, Christen, and Watford). Under AEDPA deference, the 9th affirms the denial of petitioner’s challenge to his capital sentence. Counsel was not ineffective in failing to present additional family and social mitigation in the penalty phase. Counsel was also not ineffective in failure to present mental experts and psychological and psychiatric evidence to show that the murders were not premeditated.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/27/10-99004.pdf

 

 

 

Milam v. Harrington, No. 19-55213 (3-25-20)(Hurwitz w/Tashima & Friedland).

This is an equitable tolling case. The 9^th vacates the dismissal of a habeas and remands.

The petitioner is serving a life sentence. Petitioner’s family retained counsel, and then subsequently retained another, to represent him in habeas. Each retained counsel blew deadlines. The state moved to dismiss the federal petition as untimely, and it was granted, despite the argument for equitable tolling.

The 9^th held that the district court erred in (1) categorically finding that retained counsel obviated equitable tolling; and (2) that “true abandonment” by counsel was required.  As for the first claim, the petitioner raised his severe mental illness, which could have well contributed to his not being able to pursue his claims, or even track his petitions.

Congrats to Mike Drake, Deputy Federal Defender, Cal C (Los Angeles).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/25/19-55213.pdf

 

1.  US v. Miller, No. 17-50338 (3-20-20)(Rakoff w/Watford & Bennett). The 9th affirmed convictions for fraud despite a clear error in the jury instruction and shenanigans with the US Atty’s Office in Cal Central. The defendant embezzled $300,000 from the company of which he was president and managing partner. His defense was that he intended to pay it back (hence a shady loan). He objected to the standard jury instruction for wire fraud, 18 USC 1343, which required intent to “deceive or cheat.” He was prescient, as the Supreme Court held in Shaw v. US, 137 S. Ct 462 (2016), that “a scheme to defraud” requires deceit and intent to deprive (hence cheat). Shaw controls and overrules prior precedent. Alas, despite an objection, the 9th still found the error to be harmless.

As for shenanigans, the 9th expressed its dismay at the role of an AUSA who had a personal interest in the case (his father was a victim). The prosecutor called the FBI and seemingly pulled strings and took an interest in the matter. DOJ eventually reassigned to another district, but the prosecutor’s role was unseemly, and violated ethical and professional standards. However, the misconduct did not violate due process nor require a dismissal. Neither does a romantic relationship between the lead agent and a prosecutor from the recused Cal Central US Atty’s office require dismissal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/20/17-50338.pdf

2. US v. Walker, No. 18-10211 (3-20-20)(Bybee w/Melloy & N. Smith). The 9th affirms an ACCA sentence. An argument on appeal was that the Sixth Amendment required a jury, and not the court, to find three separate convictions. The 9th appreciated the argument but held that precedent (Grisel) allowed a sentencing judge to determine when the dates on the certified convictions occurred, and thus were separate. Mathis, 136 S. Ct. 2243 (2016) only proscribed judges from looking at underlying facts in a categorical analysis of a predicate’s elements.

Spirited argument by Peggy Sasso, AFPD, with Cal E (Fresno).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/20/18-10211.pdf

3.  Smith v. Davis, No. 17-15874 (3-20-20)(en banc)(Bea majority; dissent by Berzon).

Tough loss for David Porter, AFPD, with Cal E (Sacramento). Sitting en banc, the 9th creates a new test for habeas equitable tolling. The 9th holds that a petitioner must show (1) exceptional circumstances that prevented his filing; and then (2) that he acted diligently during the remaining period.

Berzon, with others, dissenting, argues that the rejection of a “stop clock” test flies in the face of legislative intent and Supreme Court precedent (Holland). The majority substitutes a judge’s determination of diligence — the time needed to file a petition after an equitable tolling hurdle — for the intent of Congress. The majority, hostile to equitable tolling, creates another test.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/20/17-15874.pdf

Order o' The Week: Jeremy Daniels and Changed Pretrial Release Analysis, Santa Rita Jail

  “[T]he COVID-19 pandemic and the reported infections at Santa Rita

Jail changes the [pretrial release] calculus.”

   United States v. Jeremy Daniels, CR 19-00709 LHK (NC), (N.D. Cal. Apr. 9, 2020) (Ord., Dkt. 24) at 2, available here.

Players: Important opinion by the Hon. Mag. Judge Nathanael Cousins, N.D. Cal. Admirable release fight by N.D. Cal. AFPD Dejan Gantar, standing on the shoulders of Rosen, Bien, Galvan & Grunfeld’s righteous Babu case (with a particular nod to Rosen / CJA Counsel Jeff Bornstein).

The Hon. Magistrate Judge Cousins

Facts: In 2018, civil plaintiffs filed for relief against Santa Rita Jail. See Babu et al v. Ahern et al, 5:18-cv-07677 NC. The gist of Babu are complaints regarding mental-health treatment of inmates at Santa Rita Jail. All of the Babu parties consented to the Orjurisdiction of MJ Cousins, and the case has been in a civil slog for over two years.

   Two years later, Jeremy Daniels was charged with being a felon in possession of a firearm. See Daniels, CR 19-00709, Dkt. #1. On Christmas Eve, 2019, the USAO brought Daniels into court and invoked the automatic initial detentionfor 922(g) cases. Id. at Dkt. #2. 
  Roughly a week later, Magistrate Judge Cousins presided over a formal detention hearing, found Daniels a danger to the community, and ordered him detained. Id. at Dkt. #6. 
  As is true for over 95% of NorCal’s federal inmates (450 or so), Mr. Daniels was detained in Santa Rita Jail in Dublin,California.
  Then the world turned upside down.

  In February 2020 (or earlier), the COVID-19 pandemic roared into the Bay Area. By March 16, the NorCal District Court adopted G.O. 72, suspending physical court appearances. See GO 72 here.  

  Meanwhile, a Santa Rita Jail nurse tested positive, then two inmates, then eleven, then thirteen: as of April 12, 2020, there are fifteen detainees and two staff / contractor COVID-19 cases.  See Santa Rita Jail COVID-19 Website, available here.

  As COVID-19 was ripping through the jail, in his role as the Babu jurist Magistrate Judge Cousins presided over weekly, public Santa Rita Jail status hearings (attended by many dozen members of the defense bar). The civil Babu litigation has produced, among other things, the invaluable SRJ COVID-19 web page. See Santa Rita Jail COVID-19 page here.  

  Turning back to United States v. Daniels -- on April 6 AFPD Gantar moved to reopen the detention hearing on behalf of his client. Id. at Dkt. 19. After the defense and the government exchanged briefs, MJ Cousins presided over a contested (telephonic) detention hearing.

Issue(s): Does the danger presented by COVID-19 at Santa Rita Jail impact the pretrial release analysis?

Held: “Although the Court previously found that Daniels constituted a danger to the community . . ., the COVID-19 pandemic and the reported infections at Santa Rita Jail changes the calculus. Daniels now has serious, potentially life-threatening incentives to obey the conditions of his release. Not only will Daniels be incentivized to comply with the conditions of his release to temporarily remain out of jail, Daniels is further incentivized to remain in place and avoid social contact lest he contracts COVID-19. These changed conditions mitigate Daniels’ risk of danger. For these reasons, the Court ORDERS Daniels temporarily released . . . pursuant to 18 U.S.C. § 3142(i).” Daniels Ord. at 2:11-19 (emphases added); see order here.

Of Note: The Daniels Order provides a comprehensive analysis of the dangers presented by COVID-19 in Santa Rita Jail. Two particular aspects of the Daniels order bear particular emphasis. 

  First, Magistrate Judge Cousins is a former AUSA, and is known in NorCal as a measured and deliberate jurist. (Not for nothing did Santa Rita Jail consent to Judge Cousin's jurisdiction in Babu). 

  Second, MJ Cousins knows more about Santa Rita Jail than any other jurist alive, after presiding over the Babu civil litgation for over two years.

  Ergo, if Magistrate Judge Cousins is scared about Santa Rita Jail, we should all be scared.

  Read Daniels, then move to revisit that initial detention order of your federal client: the “pretrial release calculus” has radically changed, because of COVID-19 in Santa Rita Jail.   

How to Use: Successful COVID-19 release motions note the law, but their focus is really on the unique health risks faced by the specific client. In Daniels’, AFPD Gantar successfully argued that his client’s health history made COVID-19 particularly dangerous. Ord. at 2:11-14. 

  Make your client's COVID-19 co-morbidity health factors front and center in your motion to reconsider the MJ's initial detention order. See CDC List of Factors here. 

                                               

For Further Reading: Santa Rita Jail is on track to become as deeply infected with COVID-19 as Cook County Jail. 

Sign from Cook County Jail Detainees

  Easter in the Windy City has over 500 detainees and staff testing positive, and three detainee deaths. See Cook County web page here; see also article here.

   The urgent question for the Northern District of California is this: despite Alameda County’s best efforts, what precisely is Santa Rita Jail doing differently than Cook County Jail, that will permit NorCal to avoid Chicago’s grim fate?

Image of Santa Rita Jail from https://www.mercurynews.com/2020/03/18/east-bay-jail-looks-to-reduce-jail-population-by-keeping-only-violent-criminals/ .

Inage of the Honorable Magistrate Judge Nathanael Cousins from https://www.law.com/therecorder/almID/1202719524838/Uber-Unlikely-to-Dodge-Discrimination-Suit/   

Image of window signs from Cook County Jail detainees from https://wgntv.com/news/coronavirus/help-us-cook-county-inmates-post-signs-in-windows-as-covid-19-cases-mount/

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Letter o' The Week: Defenders to A.G. Barr re COVID-19 and Decarceration

 Santa Rita, hear our prayer.

Players: Hon. Attorney General William Barr. Letter from the Co-Chairs of the Defender legislative committee, Arizona Defender Jon Sands, Federal Defenders of New York Executive Director David Patton, DSAG Chair and WD Pa. Defender Lisa Freeland, the hard-working attorneys of the Sentencing Resource Counsel, and COVID-19 guru AFPD Miles Pope.

 Facts: On March 26, 2020, Attorney General Barr issued a “Memorandum for Director of Bureau Prisons”, authorizing the release of federal inmates in response to COVID-19. See NYT article here. 

  Despite that step, barriers remained to release.

  On April 1, 2020, the Defenders wrote to AG Barr and urged him to exercise his authority under the CARES Act to allow the BOP to transfer more people to the “relative safety of home confinement.” Letter of Federal Defenders at 2, available here. 

  The Defender’s letter is chilling. It recounts the scientific findings that “prisons and jails [are] tinderboxes for the spread of disease . . . our jails are petri dishes.” Id. at 4. The Defenders emphasize the obvious: “CDC recommendations such as social distancing are impossible to achieve in our federal prisons and immigration facilities as things currently stand.” Id. (citation omitted).

  With exhaustive documentation, the Defenders explain that a “chorus of public health experts has confirmed that immediate decarceration is necessary to avoid a humanitarian crisis in our prisons and jails.” Id. at 5.

  This argument is buttressed by grim reality. For example, the Cook County Jail in Chicago went from two positive COVID-19 cases, to 101 confirmed cases, in a week. Id. at 6 (emphasis added). Similarly, the infection rate in New York’s Rikers Island is seven times higher than New York City, and seventy-five times higher than the United States. Id.

  Why is a jail in Chicago, or in far-off New York, relevant to the Ninth? Well, as Governor Cuomo warned, “Look at us today . . . where we are today, you will be in four weeks or five weeks or six weeks. We are your future.” See article here.  

  New York’s future has started, in the Ninth. 

  On April 4, an inmate at Santa Rita Jail (where almost all NorCal federal inmates are held) tested positive for COVID-19. See article here. Staff have also tested positive at the jail. See Mercury News article here. 

  As noted above, in just one week a Chicago jail skyrocketed from two positive cases, to 101. (And 270 staff and detainees are positive as of April 4). Does a similar fate await Santa Rita, after its first two positive cases? The dozens of “orange” and “red” inmates housed there bodes ill. See Santa Rita Jail Corovirus Updates web page here. 

  Is this all just alarmist defense rhetoric? No: the deaths have already begun. Last week, the Northern District lost its first defendant to COVID-19 -- one of the post-conviction inmates who died in the FCI Oakdale facility in Louisiana. See Marshall Project article here. 

  That defendant had been sentenced by Judge Davila, and been represented by a NorCal CJA Attorney– who is also now hospitalized from COVID-19. The virus is here, our defendants have already died in federal custody: Santa Rita succumbing to wide-spread infection is not a question of if, but when.

  Notably, over three hundred county inmates have been released from Santa Rita since the shelter-in-place was implemented on March 17. See article here. Those releases were the result of commendable and courageous joint action by District Attorneys, jail staff, and the defense bar.

  By marked contrast, out of several hundred federal pretrial inmates incarcerated at Santa Rita, roughly half-a-dozen have been released since the beginning of shelter-in-place (and those only after fierce litigation).

   (More county inmates have been released from Santa Rita, than federal inmates detained there!)

  Who bears the blame for these frozen federal prisoners, now condemned to play viral Russian roulette? Who cares? It is a crisis too big for finger-pointing. What matters is fixing it. The solution is clear: a summit of the USAO, the federal defense bar, and Pretrial Services, to methodically identify the most vulnerable pretrial inmates and propose stipulated release orders.

  If the county D.A's and P.D.'s can find common ground, we Feds can too. Let’s meet, and let’s act, before Santa Rita becomes the next Cook County Jail.

Image of inmate calling from Alameda County Jail from https://www.sfgate.com/news/bayarea/article/Former-Inmate-Sues-County-Over-Barbaric-13170082.php#photo-15550277

Image of Cook County Jail from https://www.nbcchicago.com/news/coronavirus/cook-county-jail-now-reports-210-inmates-have-tested-positive-for-covid-19/2250366/

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org.

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