Opinion
Criminal No. 11-045 (FAB)
06-03-2020
UNITED STATES of America, Plaintiff, v. Jovanny VARESTÍN-CRUZ [11], Defendant.
Hector Ramirez-Carbo, Maria L. Montanez-Concepcion, Mariana E. Bauza, Maritza Gonzalez-Rivera, Myriam Y. Fernandez-Gonzalez, Olga B. Castellon-Miranda, Timothy R. Henwood, Nicholas Warren Cannon, John Andre Mathews, II, United States Attorneys Office, Francisco J. Adams-Quesada, San Juan, PR, Saam Zangeneh, Pro Hac Vice, Saam Zangeneh, P.A., Miami, FL, for Plaintiff.
Hector Ramirez-Carbo, Maria L. Montanez-Concepcion, Mariana E. Bauza, Maritza Gonzalez-Rivera, Myriam Y. Fernandez-Gonzalez, Olga B. Castellon-Miranda, Timothy R. Henwood, Nicholas Warren Cannon, John Andre Mathews, II, United States Attorneys Office, Francisco J. Adams-Quesada, San Juan, PR, Saam Zangeneh, Pro Hac Vice, Saam Zangeneh, P.A., Miami, FL, for Plaintiff.
MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court are defendant Jovanny Varestín-Cruz ("Varestín")’s emergency motion for bail pending appeal or, in the alternative, for temporary release, (Docket No. 2026,) and his motion requesting the Court to rule on the emergency motion, (Docket No. 2046.) As discussed below, Varestín's emergency motion, (Docket No. 2026,) is DENIED , and his motion requesting a ruling, (Docket No. 2046,) is VACATED AS MOOT .
I. Bail Pending Appeal Pursuant to 18 U.S.C. section 3143(b)
Varestín moves for bail pending appeal. (Docket No. 2026 at p. 1.) He contends that he is not a flight risk, does not pose a safety risk to others, is not appealing to delay, and raises a substantial question of law or fact in his appeal likely to result in reversal, a new trial, or a reduced sentence. Id. at pp. 9–22.
Varestín's contentions focus on the considerations for bail pending appeal set out in 18 U.S.C. section 3143(b)(1). See id. These considerations, however, do not apply in this case.
Section 3143(b) excepts certain persons from eligibility for bail pending appeal. Specifically, section 3143(b)(1) states that its considerations apply "[e]xcept as provided in paragraph (2)," while section 3143(b)(2) states that "a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, [shall] be detained." Id. § 3143(b)(1)–(2). Section 3142(f)(1)(C) describes "an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act ( 21 U.S.C. 801 et seq. )." Id. § 3142(f)(1)(C).
Varestín is excepted from eligibility for bail pending appeal in section 3143(b). He was found guilty of conspiracy to possess with intent to distribute controlled substances. (Docket No. 1583 at p. 2.) The jury found the amount of drugs involved in the offense reasonably foreseeable to Varestín was five kilograms or more of cocaine and less than one kilogram of heroin. Id. The minimum sentence for possessing that quantity of cocaine with intent to distribute it is ten years imprisonment, 21 U.S.C. § 841(b), and a person who conspires to possess that quantity of cocaine with intent to distribute it is subject to the same penalties as those prescribed for the offense, id. § 846. Varestín has also been sentenced to a term of imprisonment, (Docket Nos. 1752, 1755,) and has filed an appeal, see Docket Nos. 1756, 1762, 1796, 1855, 1863, 1885, 1890, 2002. II. Temporary Release Pursuant to 18 U.S.C. section 3142(i) and Bail Pending Appeal Pursuant to 18 U.S.C. section 3145(c)
Varestín moves for temporary release pursuant to 18 U.S.C. section 3142(i). He argues that the COVID-19 pandemic, the circumstances in jails generally, the circumstances where he is imprisoned specifically, and the risk posed by his underlying health conditions—asthma and pulmonary embolism—create a compelling reason to order his temporary release. (Docket No. 2026 at pp. 2, 16–19.)
Section 3142(i) does not authorize the Court to temporarily release Varestín. The provision regards pre-trial release. Section 3142(i) provides for temporary release "to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason." 28 U.S.C. § 3142(i). Pursuant to the interpretive canon ejusdem generis , the meaning of the phrase "another compelling reason" is limited by the phrase "preparation of the person's defense." Yates v. United States, 574 U.S. 528, 545, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015). Further, the statutory context makes clear that the phrases "preparation of the person's defense" and "another compelling reason" refer to pre-trial activities, because section 3142 regards detention and release pending trial. See id. § 3142. And courts have interpreted section 3142(i) as applicable to pre-trial activities. See, e.g., United States v. Rebollo-Andino, 312 F. App'x 346, 348 (1st Cir. 2009) (per curiam ); United States v. Hurley, No. 92-1068, 1992 WL 80316, at *4 (1st Cir. Apr. 22, 1992) (per curiam ); United States v. Le, Crim. No. 19-10199, 457 F.Supp.3d 6, 7–8 (D. Mass. May 6, 2020); United States v. Bararia, Crim. No. 12-236, 2013 WL 1907750, at *6 (D. Nev. May 7, 2013).
The proper basis for Varestín's arguments concerning COVID-19 appears to be 18 U.S.C. section 3145(c). That section provides,
A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.
Varestín has not shown an exceptional reason or a compelling reason for his release. The Bureau of Prisons has taken steps to mitigate the risk to prisoners. See Docket No. 2040 at pp. 2–6. These steps address the concerns raised by Varestín. "[I]t is a rare case in which health conditions present an ‘exceptional reason’ " for release, United States v. Wages, 271 F. App'x 726, 728 (10th Cir. 2008) (per curiam ), and this case does not fall within that narrow class.
III. Eighth Amendment
Varestín argues that "[a] failure to take necessary steps to protect ... [his] health will also constitute an Eighth Amendment violation under the Supreme Court's decision in Helling v. McKinney, 509 U.S. 25, 28, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)." (Docket No. 2026 at p. 22.) According to Varestín, "officials who fail to adequately protect inmates from the risk of contracting COVID-19 violate the Eighth Amendment's proscription against cruel and unusual punishment," his "conditions of incarceration leave him abnormally susceptible to contracting COVID-19" and "[i]f he becomes ill with the virus his risk of death or serious injury is astronomical." Id. at p. 24. The Eighth Amendment provides that cruel and unusual punishments shall not be inflicted. U.S. Const. amend. VIII. "[I]t is now settled that ‘the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.’ " Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Helling, 509 U.S. at 31, 113 S.Ct. 2475 ).
There are two necessary requirements for a prison conditions complaint to state a violation of the Eighth Amendment.
First, the alleged deprivation of adequate conditions must be objectively serious, i.e., the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Second, the official involved must have had a sufficiently culpable state of mind, described as deliberate indifference to inmate health or safety.
Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999) (citations and internal quotation marks omitted). "[T]he subjective deliberate indifference inquiry may overlap with the objective serious medical need determination; similar evidence, including evidence of adverse effects, may be relevant to both components." Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 498 (1st Cir. 2011) (internal quotation marks omitted). The burden is on the complainant to satisfy the requirements. Perry v. Roy, 782 F.3d 73, 78 (1st Cir. 2015).
The first requirement "does not impose upon prison administrators a duty to provide care that is ideal, or of the prisoner's choosing." Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014). "Rather, the Constitution proscribes care that is so inadequate as to shock the conscience." Id. at 83 (internal quotation marks omitted).
Deliberate indifference pursuant to the second requirement "defines a narrow band of conduct, and requires evidence that the failure in treatment was purposeful." Id. (citation and internal quotation marks omitted). "[D]eliberate indifference may also be exhibited by a wanton disregard to a prisoner's needs," but "such disregard must be akin to criminal recklessness, requiring consciousness of impending harm, easily preventable." Id. (citation and internal quotation marks omitted).
Varestín has not satisfied the deliberate indifference requirement or the objective serious medical need requirement. Neither prison officials nor this Court has disregarded the risk to Varestín of COVID-19. As noted, prison officials have taken a variety of steps to mitigate the risk to prisoners of COVID-19. See Docket No. 2040 at pp. 2–6. Indeed, Varestín acknowledges that he has been moved to a cell with only one other prisoner, the air in the facility is recycled, and prison officials have instituted lockdown measures. (Docket No. 2030 at p. 2.) These steps address Varestín's concerns. Perhaps Varestín would choose different care, but the care that he is receiving is far from shocking the conscience.
IV. Conclusion
For the reasons discussed above, Varestín's emergency motion, (Docket No. 2026,) is DENIED , and his motion requesting a ruling, (Docket No. 2046,) is VACATED AS MOOT .
IT IS SO ORDERED .