United States v. Bin Wen, 6:17-CR-06173 EAW

• Decision Date: 13 April 2020
• Docket Number: 6:17-CR-06173 EAW
• Citation: 454 F.Supp.3d 187
• Parties: UNITED STATES of America, v. Bin WEN a/k/a Ben, Defendant.
• Court: U.S. District Court — Western District of New York

454 F.Supp.3d 187

UNITED STATES of America,

v.Bin WEN a/k/a Ben, Defendant.

6:17-CR-06173 EAW

United States District Court, W.D. New York.

Signed April 13, 2020

Tiffany H. Lee, U.S. Attorney's Office, Rochester, NY, for United States of America.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

On April 7, 2020, defendant Bin Wen ("Defendant") filed an Emergency Motion for Release from Custody due to the national emergency and worldwide pandemic caused by the Coronavirus Disease-2019 ("COVID-19").¹ (Dkt. 99) (hereinafter "Defendant's Emergency Motion"). After considering the applicable factors set forth in 18 U.S.C. § 3553(a), the standard set forth at 18 U.S.C. § 3582(c)(1)(A), and the policy statement of the Sentencing Commission set forth at U.S.S.G. § 1B1.13, the Court issued an Order on April 10, 2020, granting Defendant's Emergency Motion. (Dkt. 106). The Court now issues this Decision and Order setting forth its reasons for granting Defendant's motion in further detail.

BACKGROUND

On February 2, 2018, Defendant pleaded guilty to a two-count Information charging (1) a violation of 18 U.S.C. § 1349 (conspiracy to commit wire fraud) and (2) a violation of 18 U.S.C. § 1957(a) (engaging in monetary transactions in property derived from specified unlawful activity). (Dkt. 43). The underlying criminal offense related to a fraudulent scheme whereby Defendant, along with his wife, arranged for funding from federal agencies and departments under false pretenses, totaling approximately $8.4 million. (Dkt. 43 at ¶ 4). On February 6, 2019, the Court sentenced Defendant to 33 months on each count, to run concurrently, with three years of supervised release to follow. (Dkt. 86). Defendant was also ordered to pay restitution of $5.5 million. (Dkt. 86 at 6).

On February 25, 2020, after serving his prison time at the Federal Correctional Institution Satellite Camp in Cumberland, Maryland, Defendant was transferred to a residential reentry center/halfway house, Hope Village, in Washington, D.C. (hereinafter "Hope Village"). (Dkt. 99 at 2). The Bureau of Prisons ("BOP") has calculated that Defendant's eligibility date for home confinement is July 21, 2020, and his anticipated release date to supervised release is October 28, 2020. ( Id. ). Hope Village has gained notoriety recently because of allegations concerning inadequate efforts to address the risks and spread of COVID-19, and a putative class action has been commenced on behalf of Hope Village residents in the District of Columbia District Court. See Complaint, Williams v. Fed. Bureau of Prisons , Case No. 1:20-cv-00890-RC, Dkt. 1 (D.D.C. Apr. 2, 2020).²

According to an article in The Washington Post published on April 11, 2020, Hope Village's federal contract will not be renewed after it expires at the end of this month. See Justin Wm. Moyer, Longtime D.C. Halfway House Won't Renew Federal Contract , Wash. Post (Apr. 11, 2020), https://www.washingtonpost.com/local/longtime-dc-halfway-house-wont-renew-federal-contract-norton-says/2020/04/10/75008b14-7b6f-11ea-8cec-530b4044a458_story.html.

Defendant is 48 years old and suffers from several pre-existing health conditions, including asthma, shortness of breath, severe vertigo dizziness, allergies, and sinusitis. (Dkt. 99 at 7; Dkt. 99-2; see Dkt. 83 at 3, ¶ 238). While much is still unknown about COVID-19, according to the Centers for Disease Control and Prevention:

People with moderate to severe asthma may be at higher risk of getting very sick from COVID-19. COVID-19 can affect your respiratory tract (nose, throat, lungs), cause an asthma attack, and possibly lead to pneumonia and acute respiratory disease.

People with Moderate to Severe Asthma, Ctrs. For Disease Control & Prevention (Apr. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html.

On March 20, 2020, almost 30 days after arriving at Hope Village, Defendant submitted a letter to Kendra Burk ("Director Burk"), Program Director at Hope Village, and to his case manager at Hope Village, Ms. Payne, requesting release to home confinement due to his health conditions and the risk of contracting COVID-19. (Dkt. 99-4; Dkt. 105 at ¶¶ 4-5). That same day, Ms. Payne paged Defendant to her office. (Dkt. 105 at ¶ 5). When Defendant arrived, Ms. Payne called Director Burk on speaker phone, but Director Burk asked Defendant to pick up the phone so they could speak without Ms. Payne and the other case manager in the office hearing the full conversation. (Id. ). Defendant picked up the phone, and Director Burk told Defendant that his petition was denied, and that if he was not happy at Hope Village, he had the option of returning to prison. (Id. ). She also told him that if he had a medical emergency, he could call an ambulance. (Id. ). Ms. Payne later confirmed to Defendant, in front of other Hope Village staff, that Director Burk had denied the petition. (Id. ).

On March 26, 2020, U.S. Attorney General William Barr issued a directive to the BOP's Director that the bureau "prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic." William P. Barr, Attorney General, Memorandum for Director of Bureau Prisons: Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020). Defendant drafted a second letter on Friday, March 27, 2020, again asking for release to home confinement. (Dkt. 99-6; Dkt. 105 at ¶ 6). Defendant submitted the letter to Ms. Payne, who told him she would make a copy for him before submitting it. (Dkt. 105 at ¶ 6). On Monday, March 30, 2020, Defendant followed up about the letter, and another case manager, Ms. Queen, made a copy of the letter for him and told him she would submit the original. (Id. ). Defendant represents that "[u]pon information and belief, Ms. Queen submitted the petition that day." (Id. ).

Later in the day on March 30, 2020, Mr. Wiggins, a social worker, paged Defendant to his office. (Id. at ¶ 7). When Defendant arrived, Mr. Wiggins called Director Burk, and Defendant picked up the phone. (Id. ). Director Burk "expressed confusion" as to why Defendant had submitted another petition for release after she had already denied the first petition. (Id. ). Defendant explained that he had resubmitted the petition because the Attorney General had updated the BOP policy and modified the release criteria, which further warranted his release. (Id. ). Director Burk again denied Defendant's petition and told Defendant he was not eligible for release. (Id. ). Defendant spoke with Ms. Queen about the call, who explained that Director Burk would have had to obtain the denial from BOP before communicating that the petition was denied. (Id. ).

On April 1, 2020, Defendant was called into the front office, where Ms. Queen asked Defendant to speak with Robert Emerson, the Program Director at Hope Village ("Director Emerson"). (Id. at ¶ 8). After Defendant arrived at Director Emerson's office, Director Emerson "conveyed to [Defendant] that he was upset with [Defendant]'s petitions for release." (Id. at ¶ 9). Defendant explained why he thought he should be released, and Director Emerson responded that he cannot change the law. (Id. ). Director Emerson also directed Defendant to stop trying to be released and that further efforts would constitute "staff harassment." (Id. ). As a result of this conversation and the conversations with Director Burk, Defendant "believed that his petitions had been fully and finally denied, and that if he pursued his petitions any further he could face disciplinary action." (Id. at ¶ 10).

On April 8, 2020, Defendant's roommate at Hope Village was taken to the hospital by ambulance and tested for COVID-19 before returning to their room around midnight. (Dkt. 101 at 1). The roommate was then moved out of the room and into quarantine. (Id. ).

Defendant filed the instant Emergency Motion on April 7, 2020 (Dkt. 99).³ The Government filed its opposition on April 9, 2020. (Dkt. 102). In its opposition, the Government makes no attempt to contradict Defendant's claims concerning his interactions with personnel and employees at Hope Village—in other words, Defendant's version of events on that front remains uncontradicted. Instead, the Government contends that Defendant has failed to exhaust his administrative remedies, that the Government has forwarded Defendant's motion to the BOP General Counsel's Office and he should await a determination about his request for release from the BOP, and that Defendant has not demonstrated extraordinary and compelling reasons for his release. (Dkt. 102).

A telephonic oral argument was held on April 10, 2020 (Dkt. 104), after which Defendant submitted a supplemental declaration concerning his administrative exhaustion of remedies, as requested by the Court. (Dkt. 105). The Court issued an Order granting Defendant's Emergency Motion that same day. (Dkt. 106).

DISCUSSION

I. Legal Standard

"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , No. 02 CR 743-07, 433 F.Supp.3d 613, 614 (S.D.N.Y. Jan. 15, 2020). The compassionate release statute, implemented as part of the First Step Act,⁴ provides for such an exception, stating as follows:

The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved

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