United States v. Nkanga

• Decision Date: 31 March 2020
• Docket Number: 18-CR-713 (JMF)
• Citation: 450 F.Supp.3d 491
• Parties: UNITED STATES of America, v. Nkanga NKANGA, Defendant.
• Court: U.S. District Court — Southern District of New York

450 F.Supp.3d 491

UNITED STATES of America,

v.Nkanga NKANGA, Defendant.

18-CR-713 (JMF)

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

Signed March 31, 2020

Jacob Ross Fiddelman, Nicolas Tyler Landsman Roos, Cecilia Vogel, United States Attorney's Office, New York, NY, for United States of America.

MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, District Judge:

The country faces unprecedented challenges from the novel Coronavirus ("COVID-19") pandemic. Those detained in jails and prisons face particularly grave danger. See Interim Guidance on Mgmt. of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities , Ctr. for Disease Control, at 2 (Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf (hereinafter "CDC Guidance").¹ Realistically, the best — perhaps the only — way to mitigate the damage and reduce the death toll is to decrease the jail and prison population by releasing as many people as possible. See Jan Ransom et al., "A Storm is Coming": Fears of an Inmate Epidemic as the Virus Spreads in the Jails , N.Y. Times (Mar. 20, 2020), available at https://www.nytimes.com/2020/03/20/nyregion/nyc-coronavirus-rikers-island.html (quoting the chief medical officer of New York City's jail system: "A storm is coming .... Please let as many out as you possibly can."). Many jurisdictions have begun doing just that. See, e.g. , Tracey Tully, 1,000 Inmates Will Be Released from N.J. Jails to Curb Coronavirus Risk , N.Y. Times (Mar. 23, 2020), available at https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html. So, too, have judges begun granting bail in individual cases where the law allows them to do so. See, e.g. , United States v. Stephens , No. 15-CR-95 (AJN), 447 F.Supp.3d 63, 67–68, 2020 WL 1295155, at *3 (S.D.N.Y. Mar. 19, 2020) ; Matter of Extradition of Toledo Manrique , No. 19-MJ-71055-MAG-1 (TSH), 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020). The dangers of the moment, however, call for more systemic action than a judge can grant in any one case. Moreover, there are many cases where temporary release of an inmate would be the rational and just course of action, but the law does not give a judge the authority to take it. This is one such case, and it underscores the need for a swift congressional and executive response.

The Defendant in this case, Dr. Nkanga Nkanga, is a sixty-seven-year old former doctor with no prior criminal record who, in the course of an otherwise legitimate medical practice, unlawfully prescribed oxycodone and other controlled substances for non-medical purposes. On October 24, 2019, the Court accepted Dr. Nkanga's guilty plea to several narcotics offenses. See ECF No. 50 ("Oct. 24, 2019 Tr."), at 2. If the law had given the Court discretion to leave Dr. Nkanga at liberty on bail pending sentencing (and to allow voluntary surrender thereafter), the Court would have done so, as there was no reason to believe that he posed a risk of flight and, in the absence of his medical license and practice, no reason to believe he posed a danger to any individual or the community. On top of that, he suffers from various medical conditions, including asthma

and complications resulting from a stroke in 2008. See

id. at 4-5; see also ECF No. 77-1 ("Sentencing Tr."), at 36-37, 42-43; ECF No. 75 ("Parker Decl."), ¶ 15; ECF No. 85 (attaching photographs of Dr. Nkanga's prescription medication and inhaler). But given the nature of Dr. Nkanga's offenses, and the absence — at the time of his plea — of "exceptional reasons" to justify his release, see 18 U.S.C. § 3145(c), the law gave the Court no discretion, see 18 U.S.C. § 3143(a)(2), and the Court ordered Dr. Nkanga detained without objection, see Oct. 24, 2019 Tr. 2-3.

On March 12, 2020, after COVID-19 had appeared in New York City, but before its implications were fully felt in the community, Dr. Nkanga appeared before the Court for sentencing. After concluding that a "substantial" downward variance from the recommended Guidelines range of 108 to 135 months' imprisonment was warranted in light of Dr. Nkanga's serious health issues and "declining condition," among other things, the Court sentenced Dr. Nkanga to thirty-six months' imprisonment. See Sentencing Tr. 41-43; ECF No. 66. The next day, at defense counsel's request, the Court recommended to the Bureau of Prisons ("BOP") that Dr. Nkanga be designated to Federal Medical Center, Devens "to ensure that he receives appropriate medical care." ECF No. 68; see 18 U.S.C. § 3621(b) (requiring the BOP to designate "the place of the prisoner's imprisonment" based upon, among other things, "the prisoner's mental and medical health needs" and "recommendations of the sentencing court"). But Dr. Nkanga has not yet been designated to any prison; instead, he remains in the Metropolitan Detention Center (the "MDC"), a federal jail in Brooklyn, New York. And there he is likely to remain for a while. With a few exceptions, all inmate movement within the BOP system was suspended on March 13, 2020, for thirty days, subject to further review and extension. See ECF No. 81, at 1. Judging from the federal government's most recent guidance, it is likely that the suspension will indeed be extended. See Michael D. Shear, Trump Extends Social Distancing Guidelines Through End of April , N.Y. Times (Mar. 29, 2020), available at https://www.nytimes.com/2020/03/29/us/politics/trump-coronavirus-guidelines.html.

That might be bad enough, but the MDC is no place for someone considered to be high risk for COVID-19 — which Dr. Nkanga, at sixty-seven years old and with a history of asthma

, plainly is, see, e.g. , Parker Decl. ¶¶ 6, 15; CDC Guidance at 16; People with Moderate to Severe Asthma , Ctr. for Disease Control (Mar. 17, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov% 2Fspecific-groups% 2Fasthma.html. So far, there is at least one confirmed case of the disease in the MDC. But, by the warden's own admission, the MDC "has not isolated its ‘at risk’ population at this time because the number of inmates who fall into this category is too large to contain and isolate on one or even two units." ECF No. 77-2 ("Warden Letter"), at 2. Indeed, as of March 18, 2020, the inmate population at the MDC was "not locked down." Id. at 2. Instead, inmates could "walk around and utilize the common area of their housing unit as normal operations." Id. at 1. If inmates wished, they could "remain in their cells to self-seclude," id. , but, of course, many of them — apparently including Dr. Nkanga — share their cells with other inmates, ECF No. 74 ("Defs. Mem."), at 12. Cleaning supplies are issued only "once a week" for "[i]nmate orderlies" to clean the common spaces and inmates to clean their own cells. Warden Letter 2. The dangers — to Dr. Nkanga and others like him — are self-evident. See, e.g. , Reuters, Prisoner Serving Time for Drug Charge Is First U.S. Inmate to Die from COVID-19 , N.Y. Times (Mar. 28, 2020), available at https://www.nytimes.com/reuters/2020/03/28/us/28reuters-heath-coronavirus-prison-death.html?searchResultPosition=2.

In light of these circumstances, on March 27, 2020, Dr. Nkanga filed a motion for immediate release from custody. ECF No. 73. Dr. Nkanga seeks "immediate release on bail pending execution of sentence" or "alternative relief ... accomplishing [the] same." Defs. Mem. 1. More specifically, he presses three grounds for relief. First, he argues that he is eligible for bail under 18 U.S.C. § 3145(c), which authorizes temporary release for individuals who are "not likely to flee or pose a danger to the safety of any other person or the community if released" upon a "clear[ ] show[ing]" of "exceptional reasons why such person's detention would not be appropriate." See 18 U.S.C. §§ 3143(a)(1), 3145(c). Second, he argues that he is entitled to correction of an "arithmetical, technical, or other clear error" in his sentence pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. Finally, he moves for a new trial under Rule 33(a). Regrettably, although the balance of risks and benefits weighs heavily in favor of granting temporary release — as Dr. Nkanga does not pose a danger to the community and is no risk of flight if released, yet he is plainly in grave danger at the MDC and, if infected, will pose a danger to others — the Court concludes that it is powerless under the law as it currently stands to grant Dr. Nkanga relief.

Dr. Nkanga's second and third arguments can be swiftly rejected. Rule 33(a) is simply inapplicable because Dr. Nkanga pleaded guilty and did not go to trial. See United States v. Graciani , 61 F.3d 70, 78 (1st Cir. 1995) ("By its express terms, Rule 33 is confined to those situations in which a trial has been had."); United States v. Eberhard , No. 03-CR-562 (RWS), 2005 WL 2172031, at *2 (S.D.N.Y. Sept. 8, 2005) ("Since Eberhard pled guilty in this case, no trial occurred; and, as he does not seek to withdraw his guilty plea at this time, his plea remains intact, rendering Rule 33 wholly inapplicable."). Moreover, even if the Rule did apply, Dr. Nkanga has identified no "real concern that an innocent person may have been convicted" and no other reason that "letting a guilty verdict stand would be a manifest injustice." See United States v. Ferguson , 246 F.3d 129, 134 (2d Cir. 2001) (internal quotation marks omitted).

Rule 35, meanwhile, permits corrections of only "arithmetical, technical, or other clear error[s]," which must be "obvious" and "would almost certainly result in a remand of the case to the trial court." United States v. Abreu-Cabrera , 64 F.3d 67, 72 (2d Cir. 1995) (quoting Fed. R. Crim. P. 35 & Adv. Comm. Notes to 1991 Amendments). The Rule does not allow a district court to alter its sentence based on a change of heart or changed circumstances. See ...