ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

Shannon Kelley Shaw, Christopher Barrett Browne, John Charlton Shipley, Jr., Adrienne Rosen, United States Attorney's Office, Miami, FL, for Plaintiff.

Barry Michael Wax, Law Offices of Barry M. Wax, Ilana Tabacinic, Jacqueline Marie Arango, Philip Louis Reizenstein, William R. Barzee, Akerman, Senterfitt, Sabrina D. Vora-Puglisi, Puglisi Law, Miami, FL, for Defendant Raoul Doekhie 19638-104.

Adriana Collado-Hudak, David Michael Kubiliun, Jacqueline Marie Arango, Philip Louis Reizenstein, Greenspoon Marder, LLP, Ilana Tabacinic, Akerman LLP, Sabrina D. Vora-Puglisi, Puglisi Law, Miami, FL, Bruno Wolfenzon, Pro Hac Vice, Wolfenzon Rolle, San Diego, CA, for Defendant Johnny Grobman 19639-104.

Dianne Elizabeth Carames, Sabrina D. Vora-Puglisi, Puglisi Law, Ilana Tabacinic, Jacqueline Marie Arango, Philip Louis Reizenstein, William R. Barzee, Akerman, Senterfitt, Miami, FL, for Defendant Sherida Nabi 19637-104.

ORDER

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE A federal jury convicted the Defendant, Johnny Grobman ("Grobman"), of thirteen charges arising from a sophisticated, extremely profitable, years-long fraud. See Verdict [ECF No. 344]. After the verdict, this Court remanded Grobman to the custody of the Miami Federal Detention Center ("FDC Miami") pending his sentencing. [ECF No. 336].

On March 20, 2020, Grobman filed a Motion for Release Pending Sentencing, in which he asked the Court to release him because of the COVID-19 pandemic. See Motion for Release [ECF Nos. 382, 387]. This Court referred the question to the Magistrate Judge [ECF No. 383], who promptly entered an order granting the Motion for Release, see Magistrate Order [ECF No. 397]. That order was then stayed. [ECF No. 399].

Soon after, the United States (the "Government") filed a Motion for Revocation of Bond. See Motion [ECF No. 404]. Grobman responded. See Response [ECF No. 405]. And the Government replied. See Reply [ECF No. 407]. The question is now ripe for review. For the reasons set out below, the Government's Motion is GRANTED .

THE FACTS

On February 6, 2020, following a twelve-day trial, a federal jury convicted Grobman on every count against him—including wire fraud, money laundering, theft of pre-retail medical products, and smuggling. See Verdict. The evidence showed that Grobman and his three co-conspirators orchestrated a fraudulent, multimillion-dollar scheme, in which they purchased FDA-regulated products from manufacturers in the United States at deeply discounted prices by misrepresenting that the products would be shipped overseas. As a part of the scheme, the conspirators created fake documents and devised fraudulent shell companies, which they used to trick the manufacturers into believing that the products had been shipped to Suriname—when, in fact, Grobman was selling the products in the United States.

Grobman's Presentence Investigation Report concluded that his advisory guideline range is life imprisonment. See PSI [ECF No. 403] ¶ 109. The parties quarrel over what the appropriate sentence should be—an issue the Court does not address here. But the parties do not disagree about the following: Grobman will be issued a sentence in federal prison, and he will serve it. See Response at 2. Even Byramji Moneck Javat—whose sentence for somewhat similar conduct, Grobman says, would be far more reasonable than life in prison—received a sentence of ten years. Needless to say, Grobman is facing a substantial prison term.

Over the last few months, this Court has heard evidence about Grobman's significant connections outside the United States. While Grobman's wife and three daughters are U.S. citizens, see Response at 1, Grobman was born in Peru, he was raised in Peru, and he holds a Peruvian passport, PSI ¶¶ 80, 86, 93. Grobman's mother, father, and brother all reside outside the United States. Id. ¶¶ 80–81. Grobman is well-traveled: in the past ten years alone, he has traveled to China, Argentina, Israel, France, Japan, England, Austria, Spain, and Peru. Id. ¶ 86. And, through his scheme and other business dealings, Grobman has maintained substantial overseas business ties, including with his brother's company, which paid over $1 million to the company Grobman used to perpetrate the charged conspiracy. See Motion at 8.

Grobman also has access to extraordinary wealth and resources. The PSI notes that Grobman disclosed three personal and business checking accounts, which contain nearly $6 million. These include: a Bank of America individual checking account with an approximate balance of $80,000; a Bank of America business checking account with an approximate balance of $1,100,000; and four United Bank of Switzerland (UBS) business accounts with an approximate balance of $4,600,000. See PSI ¶ 99, Addendum. This accumulation of wealth is unsurprising. The evidence presented at trial showed that Grobman disbursed tens of millions of dollars to himself and his co-conspirators over the course of their five-year scheme. Beyond his bank accounts, Grobman also owns a $10 million waterfront home, which houses a 45-foot yacht. PSI ¶¶ 100, 102.

Nevertheless, Grobman contends that, in fact, he has very few resources to draw from because his assets have been frozen. But, even assuming that Grobman has disclosed all his assets—and even if all those assets have been frozen—the extent of his access to wealth cannot be doubted: by way of example, Grobman's friends and family offered to put up nearly $200,000 in cash as part of a total bond collateralization worth $3.5 million. See Magistrate Order at 16–17.

After trial, Grobman's counsel pleaded for him to remain on bond pending sentencing. In support, counsel argued that Grobman's family circumstances and his compliance with his pre-trial bond conditions demonstrated that he was not a flight risk. This Court rejected those arguments and remanded Grobman into custody, noting: "[T]hings are different once you get convicted at trial. Because until that point, hope springs eternal in human beings. And now after that point, I think it's understandable that things may have changed." Feb. 6, 2020 Trial Tr. at 17:8–11.

Five weeks later, on March 20, 2020, Grobman filed his Motion for Release, in which he argued that the spread of COVID-19—combined with his own health conditions—supplied a new basis for release. See Motion for Release at 2–3. The spread of COVID-19 has been pervasive and devastating. It has challenged institutions, undermined Americans’ ability to maintain economic security, and altered the way people interact. And, it goes without saying, the pandemic has resulted in massive suffering. In the United States alone, more than 800,000 people have tested positive for the disease, and over 40,000 Americans have died from it. Cases in U.S. , CDC (Apr. 21, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.

That said, the Bureau of Prisons (the "BOP") and FDC Miami have taken extraordinary measures to protect the inmate population. As the Government notes, starting months ago, the BOP began addressing the risks of COVID-19. Federal Bureau of Prisons COVID-19 Action Plan , Federal Bureau of Prisons (Mar. 13, 2020 3:09 PM ET), https://www.bop.gov/resources/news/20200313_covid-19.jsp. Early in the year, the BOP formed an Action Plan in close consultation with both the Center for Disease Control (the "CDC") and the World Health Organization. Id. And, by March 31, 2020, the BOP implemented Phase 5 of its Action Plan, which included a mandatory fourteen-day quarantine for all inmates, restrictions on inmate movement, new inmate screening procedures, and efforts to maximize social distancing. COVID-19 Action Plan: Phase Five , Federal Bureau of Prisons (Mar. 31, 2020 6:30 PM ET), https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp.

FDC Miami has likewise taken measures to protect its inmates, including "100% staff screening before entering the facility, suspension of visitation, [and] suspension of non-essential contractors." Letter from E.K. Carlton, Warden, to Marco Rubio, U.S. Senator (Apr. 13, 2020) ("FDC Letter"). To further protect the inmate population, new arrestees and detainees who left the facility for whatever reason—say, to attend a court proceeding—are subject to mandatory, fourteen-day quarantining and continued monitoring. See Motion at 14. Because of these efforts, as of April 13, 2020, FDC Miami had "not had any positive inmate cases" of COVID-19. FDC Letter at 1 (emphasis added). As of this writing, so far as the Court is aware, this number remains at zero.

Grobman suggests that two memoranda written by Attorney General William Barr (the "Barr Memos") support his request for release. But the Barr Memos are directed at the BOP (not the courts) and do little more than discuss the BOP's authority to grant inmates home confinement. And, while the Memos encourage home confinement for certain eligible inmates, they also caution that releasing prison populations "en masse ... would pose profound risks to the public" and make clear that the Attorney General remains "confident in our ability to keep inmates in our prisons as safe as possible"—a fact borne out by the zero cases of COVID-19 among inmates in FDC Miami. See FDC Letter at 1; March Barr Memo at 1; April Barr Memo at 2.

Nevertheless, Grobman insists that, given his health conditions, he should not remain in custody while he awaits sentencing—which is scheduled to take place in just under two months. See Paperless Order [ECF No. 391]. Grobman is forty-six years old. PSI ¶ 80. He is pre-diabetic and has been diagnosed with Discoid Lupus Erythematosus, an autoimmune deficiency that can cause skin legions. Id. ¶¶ 88–89. Grobman's "lupus was previously treated ... and has been inactive since 2013." Id. at Addendum. According to a report provided by the Department of Justice, Grobman's care at FDC Miami was listed as "healthy or simple chronic care." Id. Grobman has presented no evidence of any health complications and has sought no medical isolation since his detention.

THE LAW

1. The Standard of Review

Under Federal Rule of Criminal Procedure 59(a), this Court must set aside any part of the Magistrate Judge's order that is "clearly erroneous" or "contrary to law." A finding of fact is clearly erroneous if the Court is "left with the definite and firm conviction that a mistake has been made." See United States v. Pollock , 2014 WL 5782778, at *1 (M.D. Fla. Nov. 6, 2014) (citing Holton v. City of Thomasville Sch. Dist. , 425 F.3d 1325, 1350 (11th Cir. 2005) ). The Court reviews the Magistrate Judge's application of the law de novo , because "application of an improper legal standard ... is never within a court's discretion." United States v. Doe No. 2 , 2009 WL 10720338, at *3 (S.D. Fla. Oct. 23, 2009) (quoting Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc. , 299 F.3d 1242, 1246 (11th Cir. 2002) ).

2. The Standard for Release

The provisions of 18 U.S.C. § 3143(a) govern the release of a defendant pending sentencing. Section 3143(a) sets forth two tests. The first provides that a defendant "shall" be detained unless the defendant shows "by clear and convincing evidence that [he] is not likely to flee or pose a danger to the safety of any other person." 18 U.S.C. § 3143(a)(1).

The second sets a more-stringent standard for defendants convicted of certain serious offenses, including offenses for which the maximum sentence is life imprisonment or death. See 18 U.S.C. § 3143(a)(2). Under this second test, a defendant must show not only (1) "by clear and convincing evidence that [he] is not likely to flee or pose a danger to any other person," but also (2) either that "there is a substantial likelihood that a motion for acquittal or new trial will be granted" or that the Government has recommended that "no sentence of imprisonment be imposed." Id.

Although this second test poses a demanding standard that few defendants can meet, Section 3145(c) provides an "exceptional-reasons safety valve." Under this safety valve, a defendant who meets the first prong (flee and danger) can bypass the second prong (acquittal, new trial, or no imprisonment) by "clearly" showing that "there are exceptional reasons why such person's detention would not be appropriate." 18 U.S.C. § 3145(c).

The parties disagree as to which of these two tests applies here. Oddly enough, the Government asks the Court to use the first, less-stringent test, see Motion at 11–12, while Grobman contends that the second, more-stringent test applies, see Response at 6. In part, this disagreement appears to be based on a joint misunderstanding of the statutory scheme. The parties seem to assume that, under the second test, Grobman may be released simply by demonstrating that there are "exceptional reasons" justifying release—such as, perhaps, the spread of COVID-19. This is not so.

Instead, as explained above, under either test, Grobman must show—by clear and convincing evidence—that he is not likely to flee or pose a danger to the community. See 18 U.S.C. § 3143(a)(1), (2) ; United States v. Harris , 451 F.Supp.3d 64, 71 (D.D.C. Mar. 27, 2020) ("[E]ven when a court concludes that [the exceptional-reasons safety valve] is available, the Court must still determine whether there is clear and convincing evidence that the person is not a risk of flight and will not pose a danger to the community."). Because Grobman cannot make that showing, this Court need not decide which test applies.

ANALYSIS

This matter thus presents a straightforward question: Has Grobman shown, by clear and convincing evidence, that he is not a flight risk? He has not. To the contrary, having closely reviewed the law, the record, and the surrounding circumstances, the Court is left with the "definite and firm conviction" that Grobman is a flight risk. See Pollock , 2014 WL 5782778, at *1.

First , after observing firsthand a trial that spanned nearly three weeks, this Court denied Grobman bond pending sentencing. In doing so, the Court noted that, while "hope springs eternal in human beings," things may have changed now that Grobman was convicted. See Feb. 6, 2020 Trial Tr. at 17:8–11. That observation carries even greater weight now than it did then. Since his conviction, Grobman has had a chance to review his PSI, which determined that his "guideline imprisonment term is life imprisonment." PSI ¶ 109. While Grobman, of course, contends that his sentence should be much lower, see Response at 5, he still faces the very real possibility of a life term and, therefore, has a strong incentive to flee. See, e.g. , United States v. Bonilla , 388 F. App'x 78, 80 (2d Cir. 2010) (noting that a "Guidelines range of thirty years’ to life imprisonment provides a strong incentive for [a defendant] to flee").

Second , Grobman was convicted of a scheme premised on deception. Over the course of five years, Grobman and his co-conspirators forged documents, created fraudulent shell companies, and lied to their victims. See Motion at 7. Grobman's "fundamental lack of respect for the rule of law" undermines his claimed willingness to abide by any bond conditions the Court might impose. See United States v. Norman , 2009 WL 464078, at *3 (S.D. Fla. Feb. 24, 2009). For example, while Grobman contends that he poses no flight risk because he has surrendered both his U.S. and Peruvian passports, see Response at 3, Grobman and his co-conspirators orchestrated a sophisticated scheme in which they engineered documents and used them to dodge legal restrictions, see Motion at 7. There is no reason to believe that he would be unable—or unwilling—to do so again. Cf. United States v. Ellis , 646 F. App'x 889, 890 (11th Cir. 2016) (finding that, even though the defendant "offered to surrender her passport, ... that would not eliminate the risk of flight, ... because [the defendant] had access to sources world-wide to obtain false travel documents" (internal quotation marks omitted)).

Third , Grobman's "significant ties and travel to foreign countries weigh[ ] in favor of a finding that he [is] a flight risk." United States v. Kachkar , 701 F. App'x 744, 747 (11th Cir. 2017). Like the defendant in Kachkar , Grobman is a lawful permanent resident of the United States and has some family ties to Florida. PSI ¶¶ 13, 84. But, again, like the defendant in Kachkar (who was detained pre -trial), Grobman was born abroad, holds at least one foreign bank account, and has traveled extensively overseas—including to countries that have not signed extradition treaties with the United States. Id. ¶¶ 80, 86, 99. And the international scope of Grobman's fraud—coupled with the fact that his parents and brother all reside in Peru—lends further support to the Government's position that Grobman is a serious flight risk.

Fourth , Grobman has the resources to flee whenever, however, and (almost) wherever he wants. See Matter of Extradition of Ricardo Alberto Martinelli Berrocal , 263 F. Supp. 3d 1280, 1304 (S.D. Fla. 2017) (citing several cases holding "that defendants with financial means to flee pose a serious risk of flight"). Grobman, who lives in a $10 million waterfront home, complete with a 45-foot racing yacht, disclosed bank accounts showing nearly $6 million in cash. PSI ¶¶ 99–100, 102. During trial, the Court heard evidence that Grobman defrauded the victim companies of over one-hundred million dollars and disbursed tens of millions of dollars to himself and his co-conspirators. See Motion at 2; United States’ Response to Defendant's Motion for Release [ECF No. 390] at 1. In response, Grobman claims that his assets have been frozen and that he thus has no means to escape. See Response at 4. But, even if all his assets were disclosed and frozen—a proposition that, in light of Grobman's track record, the Court is not at all comfortable adopting—Grobman has very wealthy friends and family members who have proven themselves willing and able to help him. To list but two examples: his brother's distribution company gave Grobman's company over one-million dollars, see Motion at 8; and his friends and family have agreed to pay nearly $200,000 in cash—on a bond worth $3.5 million—to secure his release, see Magistrate Order at 16–17.

Despite this mountain of facts, Grobman insists that he must be released because he is pre-diabetic and has inactive lupus—and so, he says, the pandemic poses an unacceptable danger to his health. See Response at 1–2. But Grobman's position is, for two reasons, unavailing.

First , even if Sections 3143(a) or 3145(c) permitted release on this basis alone, as a matter of fact, Grobman has not shown that his condition is at such "an acute level warranting his release." See United States v. Esformes , 16-20549-CR-SCOLA, at 3 (S.D. Fla. Apr. 9, 2020), ECF No. 1491. "Virtually every person over the age of 50 has some health condition that could conceivably put that person at a greater risk of succumbing to the coronavirus, but this does not entitle every inmate over 50 to be released." Id.

Second , under Sections 3143(a) and 3145(c), exceptional reasons are not enough. The Court may not release a defendant unless that defendant has shown that he is not a flight risk. 18 U.S.C. §§ 3143(a), 3145(c). And Grobman has not done this. Even accepting that travel may be more challenging during the pandemic, the Court is not convinced that Grobman—for all the reasons set out above—will appear when it comes time for sentencing.

Finally, Grobman notes that, in the face of the COVID-19 pandemic, federal judges around the country have been releasing some non-violent offenders. See, e.g. , Response at 9–14; Harris , 451 F.Supp.3d at 65–66 (relying on the risks posed by COVID-19 to release a defendant convicted of distributing child pornography); United States v. Stephens , 447 F.Supp.3d 63, 67–68 (S.D.N.Y. Mar. 19, 2020) (releasing a defendant because new evidence showed that the defendant was not a danger to the community). But, as the Government points out, many others have denied bail. See, e.g. , Reply at 3; United States v. Rollins , 2020 WL 1482323, at *2 (W.D.N.Y. Mar. 27, 2020) (finding that "the outbreak of COVID-19 simply does not override" the risk that a convicted drug offender would flee or harm others after release); United States v. Jackson , 2020 WL 1445958 (W.D. Penn. Mar. 24, 2020) (denying a defendant's motion for release, which cited COVID-19 and explained that the defendant had severe asthma and allergies, because of the seriousness of the defendant's offense). If these orders teach us anything, then, it is that we judges must review each case on its own facts.

The Court is not unsympathetic to Grobman's plea; the pandemic has been hard enough to deal with on the outside. Nor does the Court mean—in any way—to minimize the threat COVID-19 poses to inmates, like Grobman, who are (of necessity) in close quarters with others. But the Court must apply the law to the facts. And those facts are dispositive here. Grobman has every incentive to flee: he is only forty-six years old, and he is facing a potential sentence of life in prison. Grobman also has all the resources he would need to effectuate his escape: he has significant foreign ties; he is extraordinarily wealthy; he has access to wealthy friends and family who have already agreed to put up millions of dollars for his release; and he has demonstrated a callous willingness—over many years—to defraud others and to disregard the law when doing so was in his own best interests. To give this Defendant , in these circumstances , a bond—because he has inactive lupus (of the skin) or because he may one day become diabetic—would be to allow (almost) every non-violent defendant in the country out onto the streets. This the Court will not do.

*******

Accordingly, the Court hereby

ORDERS and ADJUDGES that the Motion [ECF No. 404] is GRANTED . The Defendant's bond is revoked.

DONE AND ORDERED in Fort Lauderdale, Florida, this 24th day of April 2020.