Document 20-cr-0080

Case: 20-cr-0080 Document: 280 Filed: 07/12/20 Page: 2 of 2 inmates are breathing and not in distress. Inmates in BOP custody are subject to searches, including body scanners, and inmates may be searched prior to moving from one area of the facility to another. The removal of Ms. Maxwell's face mask complies with the BOP's COVID-19 Pandemic Response Plan. Since Ms. Maxwell's arrival, she has been provided three (3) meals a day in accordance with BOP policy and its National Menu. Food Service staff have addressed Ms. Maxwell's requests. Ms. Maxwell is served her breakfast upon entering the common area of the housing unit at 7:00 AM; at noon she is served her lunch; and at 5:00 PM she is served dinner. Her medical records show that she currently weighs 134 lbs., which fluctuates plus or minus 2 lbs. Health Services staff make regular rounds of her housing unit and she has been instructed on how to request medical care through the sick call procedures. Furthermore, while there has been a number of inmates whom have tested positive for COVID-19, Ms. Maxwell remains in good health and is not in contact with those individuals. The BOP staff is assigned to Ms. Maxwell's unit do not come in contact with the other individuals whom have tested positive. Lastly, the temperature of Ms. Maxwell's cell is checked three times daily to ensure it is in compliance with national standards. In accordance with the BOP's COVID-19 Pandemic Response Plan, inmates are allotted 500 minutes per month of social telephone calls, which Ms. Maxwell has used throughout her time at MDC Brooklyn. While Ms. Maxwell has received one legal video conference, she continues to have full access to legal telephone calls and in person legal visits. Pursuant to the District Courts guidance, legal telephone calls are scheduled through the Federal Defenders, who should be afforded an opportunity to address any concerns Ms. Maxwell's attorneys have with the legal calls. I trust this has addressed your concerns. Respectfully submitted, /s/ Sophia Papapetru Sophia Papapetru Staff Attorney MDC Brooklyn Federal Bureau of Prisons /s/ John Wallace John Wallace Staff Attorney MDC Brooklyn Federal Bureau of Prisons DOJ-OGR-00001348 --- PAGE BREAK --- Defendant did not appeal the Court's determination that detention was required, and she has been incarcerated at the Metropolitan Detention Center since that time. II. Legal Standard Pretrial detainees have a right to bail under the Eighth Amendment to the United States Constitution, which prohibits the imposition of "[e]xcessive bail," and under the Bail Reform Act, 18 U.S.C. § 3141, et seq. The Bail Reform Act requires the Court to release a defendant "subject to the least restrictive further condition, or combination of conditions, that [it] determines will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(c)(1)(B). Only if, after considering the factors set forth in 18 U.S.C. § 3142(g), the Court concludes that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community," may the Court order that the defendant be held without bail. 18 U.S.C. § 3142(e)(1). If there is probable cause to find that the defendant committed an offense specifically enumerated in § 3142(e)(3), a rebuttable presumption arises "that no condition or combination of conditions will reasonably assure" the defendant's appearance or the safety of the community or others. 18 U.S.C. § 3142(e)(3). In such circumstances, "the defendant 'bears a limited burden of production . . . to rebut that presumption by coming forward with evidence that he does not pose a danger to the community or a risk of flight.'" United States v. English, 629 F.3d 311, 319 (2d Cir. 2011) (quoting United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001)); see also United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) ("[A] defendant must introduce some evidence contrary to the presumed fact in order to rebut the presumption.") Nonetheless, "'the government retains the ultimate burden of persuasion by clear and convincing evidence that the --- PAGE BREAK --- hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community." A court may also revisit its own decision pursuant to its inherent authority, even where the circumstances do not match § 3142(f)'s statutory text. See, e.g., United States v. Rowe, No. 02-CR-756 (LMM), 2003 WL 21196846, at *1 (S.D.N.Y. May 21, 2003) (noting that "a release order may be reconsidered even where the evidence proffered on reconsideration was known to the movant at the time of the original hearing."); United States v. Petrov, No. 15-CR-66 (LTS), 2015 WL 11022886, at *3 (S.D.N.Y. Mar. 26, 2015) (noting the "Court's inherent authority for reconsideration of the Court's previous bail decision"). In line with this, the Defendant's new motion aims to address the reasons that the Court provided when it originally determined that no conditions could reasonably assure her appearance and that pretrial detention was warranted. First, the Defendant proposes a more expansive set of bail conditions that she claims addresses any concerns regarding risk of flight. The newly proposed conditions include a $28.5 million bail package, which consists of a $22.5 million personal recognizance bond co-signed by the Defendant and her spouse and secured by approximately $8 million in property and $500,000 in cash, along with six additional bonds— five co-signed by the Defendant's friends and family members and the sixth posted by the security company that would provide security services to the Defendant if she were granted bail and transferred to home confinement. See Def. Mot. at 2. The proposed conditions also provide that the Defendant would be released to the custody of a family member, who would serve as her third-party custodian under 18 U.S.C. § 3142(c)(1)(B)(i); that she would be placed in home confinement with GPS monitoring and that her travel would be restricted to the Southern and Eastern Districts of New York and would be limited to appearances in Court, meetings with 5 DOJ-OGR-00001214 --- PAGE BREAK --- counsel, medical visits, and upon approval by the Court or Pretrial Services. Id. at 2 3. Furthermore, the Defendant would have on-premises security guards that she would pay for who would prevent her from leaving the residence at any time without prior approval by the Court or Pretrial Services and who would escort her when she is authorized to leave. Id. at 3. The motion also presents new information that, according to the Defendant, addresses the concerns that the Court articulated when it determined that detention was warranted. This newly presented information, most of which was available to the Defendant at the time of the initial bail hearing, includes evidence of the Defendant's family ties in the United States, see Def. Mot. at 10 14; a detailed financial report that provides a more comprehensive outlook on the Defendant's financial conditions and assets, see id. at 15–18; evidence that according to her rebuts the Government's original contention that she attempted to evade law enforcement prior to her arrest, see id. at 18–25; waivers of her right to contest extradition from the United Kingdom and France, along with expert opinions claiming that the Defendant would not be able to resist extradition if she were to execute the waivers, see id. at 25–29; and evidence that she argues lays bare the weakness of the Government's case against her, see id. at 30–34. Finally, the Defendant argues that the conditions of her confinement, including as a result of the COVID-19 pandemic, present an additional factor favoring release. She claims that the conditions imposed are punitive and that those conditions interfere with her ability to participate in her defense, and she asserts that these factors further militate in favor of release. See id. at 34 38. Having carefully considered all of the Defendant's arguments, the Court again concludes that no conditions or combination of conditions could reasonably assure her appearance and that --- PAGE BREAK --- detention without bail is warranted under 18 U.S.C. § 3142(e)(1). The Court accordingly denies Defendant's request to reopen the original bail hearing and denies her renewed motion for bail. A. The presumption in favor of detention applies The Court is required to presume that no condition or combination of conditions of pretrial release will reasonably assure the Defendant's appearance. The Bail Reform Act provides that if a defendant is charged with committing an offense involving a minor victim under 18 U.S.C. §§ 2422 or 2423, "it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed." 18 U.S.C. § 3142(e)(3)(E). The Defendant's indictment by a grand jury suffices to establish that there is probable cause to believe that she committed the offenses charged in the indictment. See, e.g., United States v. Contreras, 776 F.2d 51, 53–54 (2d Cir. 1985) (noting that that an indictment returned by a properly constituted grand jury "conclusively determines the existence of probable cause" and that "the return of an indictment eliminates the need for a preliminary examination at which a probable cause finding is made by a judicial officer pursuant to Rule 5(c) of the Federal Rules of Criminal Procedure." (citations omitted)). In light of the crimes charged in the indictment, the Court begins with the presumption that no condition or combination of conditions of pretrial release will reasonably assure the Defendant's appearance. When the presumption applies, the Defendant bears a limited burden of production "tending to counter the § 3142(e) presumption of flight," Contreras, 776 F.2d at 53 n.1. The Defendant's burden of production only requires that she "introduce a certain amount of evidence contrary to the presumed fact." United States v. Jessup, 757 F.2d 378, 380 (1st Cir. 1985), --- PAGE BREAK --- abrogated on other grounds by United States v. O'Brien, 895 F.2d 810 (1st Cir. 1990). That burden is "limited." United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001). The Defendant's proffer of evidence and information including information relating to her financial conditions and her family ties to the United States, among other things—satisfies this limited burden. As the Court discussed at the July 14, 2020 hearing, these factors bear on the question of whether the Defendant poses a flight risk. And the evidence she advances in her renewed motion for bail reasonably disputes the presumption that she poses a flight risk. In that sense, this evidence is relevant to the ultimate determination and satisfies the relatively low threshold imposed by the burden of production. The presumption of flight does not disappear entirely, however, and it "remains a factor to be considered among those weighed by the district court." United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001) (quoting Martir, 782 F.2d at 1144). As a result, "[a] judicial officer conducting a detention hearing should, even after a defendant has come forward with rebuttal evidence, continue to give the presumption of flight some weight by keeping in mind that Congress has found that these offenders pose special risks of flight, and that 'a strong probability arises' that no form of conditional release will be adequate to secure their appearance." Martir, 782 F.2d at 1144 (citation omitted). B. The new information does not alter the Court's initial determination When determining whether there are conditions of release that will reasonably assure the appearance of the person as required, courts are required to consider the factors outlined in 18 U.S.C. § 3142(g). Thus, the Court considers (1) the nature and circumstances of the offense charged, including whether the offense involves a minor victim, (2) the weight of the evidence, (3) the defendant's history and characteristics, and (4) the nature and seriousness of the danger to --- PAGE BREAK --- any person or the community posed by pre-trial release. See Mercedes, 254 F.3d at 436; see also 18 U.S.C. § 3142(g). At the July 14, 2020 bail hearing, the Court considered these factors before concluding that no conditions of release could reasonably assure the appearance of the person as required. And the first and fourth factors remain unchanged. As already noted, the Defendant is charged with offenses involving minor victims, and it is undisputed that the nature and circumstances of the offenses charged in the Superseding Indictment weighs in favor of continued detention. On the other hand, the Government has not advanced any evidence that the Defendant poses a danger to any person or to the community, a factor that weighs against detention. The Defendant's arguments therefore focus on the second and third factors. As explained below, neither the arguments put forth in the Defendant's renewed motion for bail nor the evidence she submitted in conjunction with her motion rebut the Court's conclusions, and the Court continues to find, after again applying these factors, that no conditions of release will reasonably assure the Defendant's appearance at future proceedings. 1. The Weight of the Evidence The Court will address the strength of the Government's case first. The Defendant argues that the Government lacks any meaningful documentary corroboration of the witness testimony and that the discovery produced to date has included only a "small number of documents from the time period of the conspiracy." Def. Mot. at 5. And she claims, as a result, that the Government overstated the strength of its case in advance of the July 14, 2020 bail hearing. See id. at 30 33. So she argues that the second § 3142(g) factor supports release. The Court disagrees. Arguing that the case against her "is based almost exclusively on the recollections of the three accusers, who remain unidentified," the Defendant contends that the --- PAGE BREAK --- than any other inmate at the MDC, and thus she cannot claim any greater need for bail than the many inmates awaiting trial there.3 The virus, of course, presents new and complex challenges for protecting inmates' health, but the BOP generally, and the MDC specifically, are prepared to handle the risks presented by COVID-19 and other health issues. The MDC's response to the pandemic was the subject of extensive evidentiary hearings in the context of a civil lawsuit in the Eastern District of New York. See Chunn v. Edge, No. 20 Cr. 1590, 2020 WL 3055669 (E.D.N.Y. June 9, 2020). In Chunn, the District Court conducted extensive fact gathering about the conditions at the MDC before concluding that "MDC officials have recognized COVID-19 as a serious threat and responded aggressively." Id. at *1; see also id. at 25 ("The MDC's response to COVID-19 has been aggressive and has included, among other steps, massively restricting movement within the facility, enhancing sanitation protocols, and creating quarantine and isolation units. And the data—though limited—suggests that these measures have been quite effective in containing COVID-19 thus far.") Numerous judges in this District have rejected applications for release based on assertions about the hypothetical risks of COVID-19, including multiple cases involving defendants who, unlike this defendant, suffer from underlying health conditions. See, e.g., United States v. Hanes-Calugaru, No. 19 Cr. 651, ECF No. 257 (S.D.N.Y. May 4, 2020) (Swain, J.) (denying pre-trial bail application by defendant who was on MDC's initial high-risk list but subsequently removed following new CDC guidance (see ECF Nos. 239, 242, 257)); United States v. Curry, 19 Cr. 742, ECF No. 37 (S.D.N.Y. Apr. 30, 2020) (Hellerstein, J.) (denying pre-trial bail application by 3 The defendant also argues that the circumstances of the pandemic would pose a "significant hurdle" to the defendant's ability to flee. Opposition Memorandum at 16. The Government submits that the defendant has the means and resources to find her way out of the country, and a short quarantine period abroad would be a small price to pay to avoid years in prison. 14 DOJ-OGR-00000999 --- PAGE BREAK --- applications in view of the applicable factors under the Bail Reform Act. This Court should reach the same conclusion based on the extraordinary risk of flight described in detail above. The defendant's argument that bail is required for her to prepare her defense is equally unpersuasive. Judges in this district have repeatedly held that the current restrictions on inmate access to counsel do not warrant releasing defendants who should otherwise be detained under the Bail Reform Act. See United States v. Tolentino, 20 Cr. 007 (DLC), 2020 WL 1862670, at *2 (S.D.N.Y. Apr. 14, 2020); United States v. Adamu, 18 Cr. 601 (PGG), 2020 WL 1821717, at *6 (Apr. 10, 2020); United States v. Brito, 20 Cr. 63 (PGG), 2020 WL 2521458, at *5-6 (S.D.N.Y. May 17, 2020); United States v. Ellison, 18 Cr. 834 (PAE), 2020 WL 1989301, at *1-2 (S.D.N.Y. Apr. 27), United States v. Melamed, No. 19 Cr. 443 (LAK), 2020 WL 1644205, at *2 (S.D.N.Y. Apr. 2, 2020); United States v. Pena, No. 18 Cr. 640 (RA), 2020 WL 1674007, at *1 (S.D.N.Y. Apr. 6, 2020). Just last week, a district judge in the Eastern District of New York denied bail to a defendant who argued that restricted access to his counsel at the MDC required his release, while noting the volume of decisions reaching the same conclusion. United States v. Shipp, No. 19 Cr. 299 (NGG), 2020 WL 3642856, *3-4 (E.D.N.Y. July 6, 2020) (collecting cases). This Court's decision in Stephens does not compel a different result here. In that case, this Court concluded that bail was necessary in order to permit the defendant to prepare for a significant hearing, which was scheduled for six days later. United States v. Stephens, No. 15 Cr. 95 (AJN), 2020 WL 1295155, at *3 (S.D.N.Y. Mar. 19, 2020) (finding that the limitations on the defendant's access to counsel "impacts the Defendant's ability to prepare his defenses to the alleged violation of supervised release in advance of the merits hearing scheduled for March 25, 2020.") By contrast, no evidentiary hearings have been requested, much less scheduled, in this case, and a trial date has not yet been set. See United States v. Gonzalez, No. 19 Cr. 906 (JMF), 2020 WL 1911209, --- PAGE BREAK --- Case: 20-cr-0080 Doc#: 11032 Filed: 06/23/20 Page: 31 of 515 TABLE OF AUTHORITIES Page(s) Cases United States v. Chen, 820 F. Supp. 1205 (N.D. Cal. 1992)................................................ 10 United States v. Orta, 760 F.2d 887 (8th Cir. 1985)................................................ 1 DOJ-OGR-00001188