Opinion
13-CR-453 (GRB)
2020-09-23
UNITED STATES of America, v. Brian CALLAHAN, Defendant.
Christopher Charles Caffarone, Central Islip, NY, Winston M. Paes, Karin K. Orenstein, Brian D. Morris, United States Attorneys Office, Brooklyn, NY, for United States of America. Amy Lynn Walsh, Morvillo LLP, Ellen M. Murphy, Morvillo, Abramowitz, Grand, Lason, Anello & Bohrer, P.C., Mark Elliot Cuccaro, Sher Tremonte LLP, Michael Tremonte, Roland G. Riopelle, Sercarz & Riopelle LLP, New York, NY, for Defendant.
Christopher Charles Caffarone, Central Islip, NY, Winston M. Paes, Karin K. Orenstein, Brian D. Morris, United States Attorneys Office, Brooklyn, NY, for United States of America.
Amy Lynn Walsh, Morvillo LLP, Ellen M. Murphy, Morvillo, Abramowitz, Grand, Lason, Anello & Bohrer, P.C., Mark Elliot Cuccaro, Sher Tremonte LLP, Michael Tremonte, Roland G. Riopelle, Sercarz & Riopelle LLP, New York, NY, for Defendant.
MEMORANDUM AND ORDER
GARY R. BROWN, United States District Judge:
Pending before the Court is a motion by the defendant, Brian Callahan, for a compassionate release primarily based upon a claim that certain ailments – particularly, a condition known as Dupytren's Syndrome, or a variant known as Dupytren's Contracture – renders him more likely to contract COVID-19 while incarcerated. This application, filed approximately 30 months into a 144-month sentence, fails to meet the standards for such release, and is therefore denied.
In this case, Judge Spatt, a most careful jurist, dutifully and diligently considered and applied the 18 U.S.C. § 3553(a) sentencing factors. Judge Spatt, agreeing with the Government that the estimate by the Probation Department of a sentencing range of 292 to 365 months was inappropriate, determined the correct guideline range to be 151 to 188 months. DE 181; Tr. 62. Characterizing the offense at issue as "a major fraud, one of the worst," Tr. 63, Judge Spatt carefully crafted a sentence intended to reflect the "very serious" nature of the offense, noting that the defendant's conduct, specifically "cheating and stealing and lying," required a consequence that would promote respect for the law, as well as contemplate specific and general deterrence and therefore protect the public. Tr. 64. Judge Spatt carefully noted the "disturb[ing]" nature of one claim, made by the defendant and/or his counsel, that his acts were the result of a "mistake," observing:
This was not a mistake. This was a decided, intention criminal act and acts. No mistake here. That word doesn't belong in this sentencing. The defendant took more than a hundred million dollars
from investors and used these monies to pay redemptions to other investors, his own personal use, and buying this resort. to these investors for more than seven years.
Tr. 65. Notwithstanding these significant findings, Judge Spatt was careful to balance certain positive contributions by defendant. Tr. 65-66. In the end, despite the gravity of defendant's wrongs, Judge Spatt imposed a term of incarceration of 144 months, a sentence below the applicable Guidelines range. In the plea agreement governing Callahan's guilty plea, he "waived his right to appeal if he received a sentence of imprisonment of 327 months or below." DE 216 at 3.
To put this in context, this motion is not Mr. Callahan's first attempt to challenge the sentence imposed. Initially, he appealed the sentence to the Second Circuit; the appeal, barred by the plea agreement herein, was dismissed. DE 188. Next, the defendant filed a Section 2255 petition, arguing, among other things, that the prosecution improperly changed its theory at the 11th hour and substantially increased the Guidelines range, and the defendant further sought recusal of Judge Spatt from the case. DE 196. In June 2019, defendant followed up with a motion to disqualify the United States Attorney's Office, a second request to disqualify Judge Spatt and another demand for immediate release. DE 206-1.
On July 31, 2019, Judge Spatt rejected the motion for recusal. DE 216. In January 2020, Judge Spatt rejected Callahan's Section 2255 petition for recusal in a carefully considered, 31-page decision. DE 226. As part of that determination, Judge Spatt observed the following about the sentencing herein:
After hearing extensive arguments from defense counsel and the Government regarding the appropriate loss calculation, the Court rejected Callahan's argument and agreed with the Government and Probation that Callahan caused $19.7 million in loss. The Court then permitted Callahan's father, his wife, a family friend, defense counsel, Callahan, the Government and several victims to be heard regarding the appropriate sentence to be imposed. The Court examined each of the factors set forth in 18 U.S.C. § 3553(a), and sentenced Callahan to 144 months incarceration—a variance below the applicable advisory Guidelines range of 151 to 188 months.
Id. at 5. Despite Callahan's claims (and those of his codefendant), Judge Spatt determined, following a detailed analysis, that "the Government's estimated fraud loss is entirely consistent with the Defendants’ plea agreements." Id. at 6. Judge Spatt found that the defendant's argument that he was entitled to a $0 loss figure was "confused, at best, and misleading, at worst." Id. at 9. Callahan moved for a certificate of appealability; on September 14, 2020, the Second Circuit denied that motion and dismissed the appeal, noting that Callahan had not "made a substantial showing of the denial of a constitutional right." DE 243.
This motion follows.
Standard for Review of a Compassionate Release Motion
As Judge Brodie recently observed:
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti, 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). Section 3582(c)(1)(A)(i) "empowers a court to reduce a defendant's term of imprisonment if it finds that ‘extraordinary and compelling reasons warrant such a reduction.’ " United States v. Ebbers , 432 F. Supp. 3d 421, 422 (S.D.N.Y. 2020) (quoting
18 U.S.C. § 3582(c)(1)(A)(i) ). "Prior to the enactment of the FIRST STEP Act, only the Director of the BOP could file a motion for compassionate release," but "[t]he FIRST STEP Act amended this provision to permit an inmate to file a motion in federal court seeking compassionate release." United States v. Haney , 454 F. Supp. 3d. 316, ––––, No. 19-CR-541, 2020 WL 1821988, at *1 (S.D.N.Y. Apr. 13, 2020) ; see also Ebbers , 432 F. Supp. 3d at 423 ("The First Step Act created an independent avenue for defendants to seek relief from the federal courts.").
Under section 3582(c), and as relevant here, courts may modify a previously imposed sentence where:
(A) 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 ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A)(i)-(ii).
United States v. Kissi , No. 13-CR-51 (MKB), ––– F.Supp.3d ––––, ––––, 2020 WL 3723055, at *3 (E.D.N.Y. June 26, 2020).
As an initial matter, the Government concedes that the motion is ripe because Callahan filed the motion more than 30 days after filing an application with the warden. 18 U.S.C. § 3582(c)(1)(A). Beyond that, though, considering the clear statutory language of § 3582, as further explicated in the Advisory Note to U.S.S.G. § 1B1.13, it appears that none of the circumstances articulated by defendant satisfy the threshold requirements of extraordinary circumstances. To be clear, defendant is not suffering from a terminal illness, does not meet the age and service requirements, and is not facing extraordinary family circumstances, as described in subsections (A)(i), (B) and (C) of the Advisory Note to U.S.S.G. § 1B1.13(A)(i). Defendant attempts to qualify for compassionate release under Advisory Note § 1B1.13(A)(ii)(I), which potentially authorizes release where "defendant is ... suffering from a serious physical or medical condition, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover." None of the articulated bases for the motion even come close to satisfying this high standard.
a. Risk of Contracting COVID-19
Initially, defendant filed this application as an "emergency order", asserting that conditions at MDC combined with the defendant's particularized "vulnerability to COVID-19" formed the basis for an immediate release to home confinement. DE 234. With respect to the care and conditions at MDC, defendant largely relied upon reports filed by Dr. Homer Venters (the "Venters Reports") in Chunn v. Edge , 20-CV-1590 (RPK), a class action brought by MDC inmates concerning conditions relating to medical care at that facility in the face of the pandemic. Id. Since the filing of that motion, my colleague, Judge Kovner, has issued a comprehensive decision in that matter. Chunn v. Edge , No. 20-CV-1590 (RPK), ––– F.Supp.3d ––––, ––––, 2020 WL 3055669, at *13 (E.D.N.Y. June 9, 2020) (denying preliminary injunctive relief).
In that decision, Judge Kovner documented numerous issues with the Venters Reports, including conclusions unsupported by evidence and/or contrary to existing scientific guidance. See id. (noting that Venters’ opinion that all inmates should be equipped with N-95 respirators ran contrary to CDC guidance and standard practice). As relevant to a compassionate release motion, Judge Kovner's conclusions, well summarized by Judge Donnelly in a similar context, provide that
Indeed, after extensive discovery into the MDC's COVID-19 response, Judge Kovner denied the petitioners’ motion for a preliminary injunction, holding that "petitioners have not shown a clear likelihood that MDC officials have acted with deliberate indifference to substantial risks in responding to COVID-19." Chunn v. Edge , No. 20-CV-1590, ––– F.Supp.3d ––––, ––––, 2020 WL 3055669, at *1 (E.D.N.Y. June 9, 2020) ; see also id. at ––––, 2020 WL 3055669, at *26 ("The sweeping measures that MDC officials have adopted ... counsel strongly against a finding that MDC officials are being deliberately indifferent to risks associated with COVID-19.").
Lagan v. Edge , No. 20-CV-2221 (AMD), 2020 WL 3403109, at *5 (E.D.N.Y. June 19, 2020) (denying writ of habeas corpus). At least one other court has relied on Judge Kovner's exemplary work in Chunn in rejecting a compassionate release motion predicated upon COVID-19 risks. See United States v. Cole , No. CR ELH-18-167, 2020 WL 4582702, at *8 (D. Md. Aug. 7, 2020) ("Judge Kovner concluded that MDC Brooklyn had responded aggressively to the virus, noting that no inmate had died and only one inmate had been hospitalized with COVID-19").
As to his specific risks, for the first time on reply (and thus the Court does not have the benefit of a full response from the Government), defendant offers the declaration of Dr. Mark Shoag, an Ohio-based physician who has never seen, met or spoken to the defendant. DE 241-2. Essentially, Dr. Shoag suggests, based on medical information provide by Callahan's attorneys, that Callahan may be suffering from an autoimmune disorder. Id. at 1. More specifically, Shoag states that "the various conditions described by Mr. Callahan, considered together, are more consistent with an autoimmune disease than independent causes." Id. at 4. According to Dr. Shoag, if Callahan suffers from one or more autoimmune diseases – which have never been diagnosed – such diseases might increase his risk of contracting COVID-19 as well as the possibility of experiencing more serious effects if he contracts it. These last assertions may be far from established scientific fact, and are subject to developing knowledge about COVID-19. Taken together with the absence of an actual diagnosis, the information supplied by Dr. Shoag is far too speculative to warrant release from prison.
"In terms of the risk of infection, what has been observed so far indicates that a very low percentage of COVID-19 patients have an autoimmune disease.... Some articles indicate that the prognosis for patients with autoimmune diseases is similar to that of people of the same age and sex in the general population. But other sources of information, such as the Global Rheumatology Alliance COVID-19 registry, indicate the opposite." "Does having an autoimmune disease make you more susceptible to catching COVID-19?" available at clinicbarcelona.org.
In support of his motion, defendant submits a declaration from his spouse, Sheri Manson-Callahan (who, as noted above, testified at defendant's sentencing hearing). DE 242-7. Far from helping establish his case, Ms. Manson-Callahan's declaration provides additional bases for denying the motion. In her declaration, she describes the home health care agency owned and operated by the Callahans, which involves a frenetic, around-the-clock, seven days per week schedule, and declares:
If Brian is released, he will resume his work for 7 Day Home Care. (He will handle administrative tasks from home at least for the first 14 days and beyond if his health requires it.)
DE 242-7 at 6. Such a plan does not seem congruent with a release from a lengthy prison sentence due to a serious physical impairment from which one is not expected to recover.
More tellingly, however, Ms. Manson-Callahan represents the following:
In the middle of all this, I contracted COVID-19 myself and had a hard time getting out of bed for over 10 days in March. After those 10 days, I went to the office only when no one was there to make sure I would not transmit the virus to anyone. Thankfully, the twins did not get COVID-19 from me, although they were left to take care for themselves while I was sick.
Id. at 5; Compare, e.g., United States v. Rosario , No. 09-CR-415 (VEC), 2020 WL 3100461, at *2 (S.D.N.Y. June 11, 2020) (rejecting compassionate release motion based on, among other factors, defendant's undeveloped reentry plan which lacked information about COVID-19 status of household members). It seems that defendant seeks release from prison where he has not, though might, contract COVID-19, into a home and work environment where his wife and business partner has, in fact, contracted COVID-19. The seeming flaws in this logic undermine, rather than support, defendant's motion for compassionate release.
b. Treatment of Dupytren's Syndrome
As part of this motion, defendant claims that, although MDC arranged for and provided surgery to help alleviate the symptoms associated with Dupytren's Syndrome in November 2019, the onset of the pandemic led to an interruption of post-operative physical therapy treatments. DE 234 at 2. In its response, the Government contends that that situation was rectified by June 2020, but that defendant refused to attend treatments without approval from his counsel. DE 235 at 16. While defendant's counsel suggests that this is in dispute, the declaration by defendant appears to confirm the Government's position:
On June 16, 2020, the MDC offered to send me to an inpatient facility where I could receive two weeks of physical therapy. I asked the MDC to tell me the facility to which I would be sent so that my wife or my attorney could independently research the facility to determine whether it would pose a significant risk of infection of COVID-19. The MDC refused to tell me. The MDC also refused to provide for me the many months of
therapy that is necessary. I was concerned and remain concerned that just two weeks of therapy is not worth the risk of my infection of COVID-19 if I am sent to a deficient facility.
DE 242-5 at ¶49.
Having examined the evidence submitted by the defendant, there is nothing on the present record that could justify release under § 3582, based on defendant's experiences with Dupytren's Syndrome. It is beyond dispute that MDC provided surgery for defendant, and began provision of physical therapy treatment which were, quite understandably, interrupted at the outset of the pandemic. The offer to resume such treatment, rebuffed by defendant as possibly being below his subjective standards, undercuts the argument that MDC has not been providing treatment, or that the physical therapy was so critical to his recovery as to warrant release. Moreover, the subjective symptomology reported by defendant does not approach the language set forth in the Advisory Note to § 1B1.13.
c. Attempted Relitigation of Matters Previously Raised
On this motion, defendant attempts, directly or indirectly, to relitigate many issues previously raised and rejected in connection with his sentencing and § 2255 petition, et al. , including the purported violation of his plea agreement by the Government and family considerations. However, the newly-expanded right to seek compassionate release in extraordinary circumstances cannot be reduced to a vehicle for mere reconsideration of a sentence. As one court observed:
[I]n deciding motions for compassionate release, the Court should be wary of using the motion to "correct" the sentencing court's original judgment or introduce unprincipled variance into the execution of duly-imposed sentences, while still honoring Congress's stated intent of increasing the availability of compassionate release. The Court thus finds that, in considering the section 3553(a) factors, it should assess whether those factors outweigh the "extraordinary and compelling reasons" warranting compassionate release, particularly whether compassionate release would undermine the goals of the original sentence.
United States v. Ebbers, 432 F. Supp. 3d 421, 430–31 (S.D.N.Y. 2020). To the extent these matters are properly raised – and this opinion should not be read as an indication that they have been – they are, once again, considered and rejected.
As noted above, where a defendant meets the threshold for compassionate release, which defendant here plainly has not, the Court must then consider whether such release would run afoul of the Section 3553(a) sentencing factors. Judge Spatt's careful analysis and reconsideration of these factors strongly weigh against release in these circumstances. See Rosario , 2020 WL 3100461, at *1 ("Assuming the confluence of Mr. Rosario's medical conditions and the BOP's handling of the pandemic presents ‘extraordinary and compelling reasons’ to reduce his sentence, 18 U.S.C. § 3582(c)(1)(A)(i), the Court nonetheless finds that the factors set forth in 18 U.S.C. § 3553(a) outweigh those reasons and mitigate against a reduction in his original sentence"). Considering the severity of defendant's offenses, documented in extensive court findings and multiple decisions, a reduction of sentence – or in this case – an immediate release is simply unwarranted on this record.
CONCLUSION
Based on the foregoing, defendant's application for a compassionate release under 18 U.S.C § 3582(a) is DENIED. The Clerk of the Court is respectfully directed to serve a copy of this Memorandum and Order on the pro se defendant. The Clerk of the Court is further directed to close the file.