United States v. Amarrah

458 F.Supp.3d 611

UNITED STATES of America, Plaintiff,

v.Atheir AMARRAH, Defendant.

Case No. 17-20464

United States District Court, E.D. Michigan, Southern Division.

Signed May 7, 2020

Josephine Mary Gerrard, Gerrard Law Offices, Berkeley, CA, for Plaintiff.

Michael Kramer Marriott, Social Security Administration, Sara Winslow, United States Attorney's Office, San Francisco, CA, for Defendant.

ORDER GRANTING DEFENDANT ATHEIR AMARRAH'S MOTION FOR COMPASSIONATE RELEASE [190]

JUDITH E. LEVY, United States District Judge

Defendant Atheir Amarrah moves for compassionate release and/or reduction of his criminal sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).

For the following reasons, the Court GRANTS Defendant's motion.

FACTUAL BACKGROUND

1. Defendant's Background and Criminal History

Defendant Atheir Amarrah is 45 years old. He suffers from the following chronic health conditions: Type II diabetes, hypertensive heart disease, cardiac arrhythmia, obstructive sleep apnea, and asthma. (ECF No. 190.)

Defendant is currently serving a 60-month sentence at FCI Loretto in Loretto, Pennsylvania after pleading guilty to one count of Conspiracy to Pay and Receive Healthcare Kickbacks, in violation of 18 U.S.C. § 371, and four counts of Payment or Receipt of Kickbacks in Connection with a Federal Healthcare Program, in violation of 42 U.S.C. § 1320a-7b(b)(1)(A). (ECF No. 190, PageID.4508.) From approximately March 2013 through approximately March 2017, Defendant paid a series of illegal kickbacks and bribes to patient recruiters in exchange for the referral of Medicare beneficiaries to Defendant's healthcare company, Prompt Home Healthcare. (ECF No. 98, PageID.462.) Medicare paid Prompt approximately $1.8 million that was intended to pay for home health services, but that was instead laundered by Defendant. (Id. )

In August 2018, the Court revoked Defendant's pre-trial bond due to his attempts to obstruct justice. (ECF No. 106, PageID.520.) On two occasions prior to sentencing, Defendant attempted to convince witnesses to fabricate evidence in his favor. (ECF No. 110 at 52:11-22; 54:15-18.) Specifically, Defendant told one witness in a restaurant that "[w]e need to talk! If we all stick together no one will go to jail!" (See id. ) He then attempted to convince a second witness to sign paperwork fraudulently indicating that she was an hourly employee. (See id. ) The Court concluded that the government had "come very close" to demonstrating, "by clear and convincing evidence," that Defendant had violated the obstruction of justice statute. (See id. ) At the time the Court revoked Defendant's bond, it found that Defendant had failed to show by clear and convincing evidence that he was not a danger to the community. (Id. at 17:5-23.)

As of May 2020, Defendant has served 21 months out of his 60-month sentence at FCI Loretto. According to Defendant's FCI report, he has received three misconduct tickets at FCI Loretto: one for being "absent from assignment;" one for "mail abuse," in which Defendant let another person use his email account but then denied it; and one for "interfering with taking count," in which Defendant stated that he "did not hear [the guards] call count." (ECF No. 194-4, PageID.4552.) Defendant notes that one of the misconduct tickets was a result of an incontinence incident that required Defendant clean himself before reporting to his assignment. (Id. )

2. The COVID-19 Pandemic

On March 13, 2020, the President of the United States declared a national emergency due to the novel coronavirus disease (COVID-19). Proclamation on Declaring a national Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak , The White House (Mar. 13, 2020) https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. On March 22, 2020, the Governor of Michigan explained that COVID-19 "is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease." Executive Order, No. 2020-20 (Mar. 22, 2020). In Pennsylvania, where Defendant resides at FCI Loretto, the Governor issued a stay-at-home order on April 1, 2020 and recently extended it due to the ongoing need to mitigate the spread of COVID-19. Press Release, Gov. Wolf, Sec. of Health Extend Statewide Stay-at-Home Order Until May 8 (April 20, 2020), https://www.governor.pa.gov/newsroom/gov-wolf-sec-of-health-extend-statewide-stay-at-home-order-until-may-8/. The Centers for Disease Control and Prevention (CDC) has warned that a case of COVID-19 could be particularly dangerous for individuals with diabetes, heart conditions, or asthma. People Who Are at Higher Risk for Severe Illness , Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. Defendant Amarrah suffers from each of these conditions. (ECF No. 190.)

Since the Court sentenced Defendant in 2019, the exceptionally dangerous nature of the COVID-19 pandemic has become apparent. As of May 7, 2020, there are now 52,915 confirmed cases of COVID-19 in the state of Pennsylvania, where Defendant resides in federal custody, and 3,416 known related deaths. See COVID-19 Data for Pennsylvania , Pennsylvania Department of Health, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx. COVID-19 has a high risk of transmission, and the number and rate of confirmed cases indicate broad community spread. Press Release, Governor Tom Wolf COVID-19 Remarks April 17, 2020 (April 18, 2020), https://www.governor.pa.gov/newsroom/governor-tom-wolf-covid-19-remarks-april-17-2020/ (warning that, despite Pennsylvania's "collective efforts[,] ... we still have between 1,000 and 2,000 new cases daily and a national shortage of testing materials"). Nationally, Bureau of Prison (BOP) detention facilities across the country are experiencing similar trends. As of May 7, 2020, BOP has confirmed at least 2,100 cases of COVID-19 among federal inmates and 365 cases among detention facility employees and personnel. COVID-19 Coronavirus , Federal Bureau of Prisons, https://www.bop.gov/coronavirus/.

3. Conditions at FCI Loretto

On March 23, 2020, the CDC acknowledged that correctional and detention facilities "present[ ] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors." Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities , Centers for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html. Specifically, the CDC noted that many detention conditions create a heightened risk of danger to detainees. These include low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/detained persons to exercise effective disease prevention measures (e.g. , social distancing and frequent handwashing). Id.

The CDC recommended that all correctional facilities take preventative measures, including: ensuring an adequate supply of hygiene and medical supplies, allowing for alcohol-based sanitizer throughout facilities, providing no-cost soap to all inmates for frequent handwashing, cleaning and disinfecting frequently touched surfaces several times per day, performing pre-intake screening and temperature checks for all new entrants, increasing space between all detained persons to at least six feet, staggering meals, and having healthcare staff perform regular rounds. Id. In its response, the United States indicated that FCI Loretto had taken some of these measures, among others recommended in the BOP "Action Plan:" screening all newly-arriving detainees for COVID-19 risk factors and symptoms; quarantining all newly-arriving detainees for 14 days; isolating all symptomatic detainees; providing onsite medical care; enhancing the screening of FCI Loretto staff; suspending social and legal visits; and modifying programs and operations for detainees to assist with social-distancing efforts. (ECF No. 194, PageID.4532-4533.)

Though the Court commends FCI Loretto for imposing several of the CDC's interim recommendations, Defendant's description of his confinement conditions suggests that many important recommendations remain unimplemented. According to Defendant, inmates currently

eat, sleep, and interact with each other in a confined space, making it easier for the virus to spread once introduced. Inmates are still being transferred between facilities. Although they are screened for symptoms, they are not tested for the virus, leaving potentially asymptomatic individuals to spread the virus to others. While inmates are being subjected to mandatory quarantine, they are still not provided basic protections from the virus in the facilities. Inmates must purchase their own soap. Hand sanitizer is contraband. In low security facilities, inmates are being quarantined with their own unit, as opposed to individual cells, preventing them from complying with social distancing recommendations. Mr. Amarrah shares a living space with six other inmates, and shares common areas, such as bathrooms, chow halls, and recreation areas, with at least 100 other inmates. Mr. Amarrah does not have the opportunity to practice social distancing at FCI Loretto.

(ECF No. 190, PageID.4507-4508.) The United States does not dispute this description of current conditions at FCI Loretto.

There are currently no confirmed cases of COVID-19 at FCI Loretto, though it does not appear that the facility is conducting widespread COVID-19 tests for inmates or staff. Regardless, Defendant argues that his...