| To SDNY Judge Berman Tyler
Toro Asks To Be Freed From MCC Like Those in
Otisville Amid COVID
By Matthew
Russell Lee, Patreon
BBC
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SDNY COURTHOUSE,
April 22 –
The existential moments in the
criminal justice system
occasioned by the COVID-19
pandemic were on display on
April 21 when released was
sought for defendant Tyler
Toro. Transcript here
on Scribd; if that's blocked,
on Patreon here.
And see April 22 letter,
below.
U.S.
District Court for the
Southern District of New York
Judge Richard M. Berman
pressed SDNY Assistant US
Attorney Elizabeth Hampf to
help find a solution, not in
essence hide behind arguments
like not being able to get
information from the US Bureau
of Prisons.
Defense
lawyer Sabrina Shroff, working
pro bono or for free after
receiving a telephone call
from the mother of Tyler Toro
whose brother she had
previously represented but no
longer represents, pointed out
the disparity of, for example,
Michael Cohen being released
still owing two years on his
sentence, while Tyler Toro
remains detained.
Now on
April 22 Shroff as filed a
detailed letter seeking Tyler
Toro's release, including "Re:
United States v. Tyler Toro,
18 CR 218 (RMB) (Post-Hearing
Letter of Tyler Toro re
Compassionate Release)
Dear Judge Berman: Tyler
Toro was sentenced by this
Court to 36 months in custody.
See Dkt. No. 62. Through no
fault of his own he was
designated to serve his
sentence at MCC-New York.
Given his progress at MCC-New
York, including a clean
disciplinary record, his
release date is September 5,
2020 – less than five months
from now. See Govt. 4/21/20
Letter, Ex. C. He is eligible
for home detention starting
May 20, 2020 – one month from
now. Id. In anticipation of
his May 20th transition back
to society, Mr. Toro submitted
to MCC-NY all necessary
paperwork for residential
release (RRM) on December 31,
2019, and sent a letter to
MCC-NY (attached as Exhibit 1)
seeking home confinement
because of the pandemic on
April 12, 2020.
These undisputed
facts, together with the fact
that Mr. Toro has a detailed
re-entry plan and suffers from
an autoimmune disorder that
leaves him more vulnerable to
contracting COVID-19, fully
supports his immediate release
from the MCC-NY. Such a
release will also comport with
the policies articulated by
Attorney General Barr in
response to the serious
pandemic risk faced by those
detained in jails and
prisons. Attorney
General Barr’s May 26, 2020
memorandum identifies six
discretionary factors
supporting immediate transfer
to home confinement because of
COVID-19. Mr. Toro meets all
of them.
He (i) is at
increased risk of infection
and danger because of his
autoimmune disorder; (ii) is
low risk and housed as a cadre
at MCC-New York; (iii) has no
disciplinary history, and used
his time at MCC-NY to better
himself by completing the
NRDAP drug treatment program
and being part of the HVAC
work assignment program; (iv)
has a minimum PATTERN score;
(v) has a demonstrated and
verifiable re-entry plan that
allows him to get both drug
and mental health treatment,
maximizes public safety, and
lowers his risk of viral
infection; and (vi) his
remorse for his crime is
sincere and his recidivism
risk nonexistent. See Ex. 1;
see also Exhibit 2 (letter
from Mr. Toro explaining how
he meets these factors), and
Exhibit 3 (public records from
MCC-New York showing his work
and education history.
Recognizing that
prison conditions have further
deteriorated and that inmates
and BOP personnel face
increasing risk of infection,
Attorney General Barr’s April
3, 2020 memorandum further
encourages home confinement
and “expanded the cohort of
inmates who can be considered
for home release” because it
was clear “that emergency
conditions are materially
affecting the functioning of
the Bureau of Prisons.”
The April 3, 2020 Barr memo
states that home release
should be considered even when
“electronic monitoring is not
available” and that “inmates
with a suitable confinement
plan will generally be
appropriate candidates for
home confinement.” Mr. Toro
has a suitable confinement
plan. See Ex. 2. He will
self-quarantine for 14 days at
his home in the Bronx, where
he has his own separate
bedroom and bathroom, and will
continue to shelter there
after his quarantine period
ends. Id. He is fully capable
of self-reporting and working
with Probation to find
appropriate mental health and
drug treatment services1 and
honor all other release
conditions. Mr. Toro was
previously employed at Sweet
Greens. He was good employee
and by every indication, even
with the current economy, he
may be able to return to work
there as the restaurant is
still operating. Id.
Demonstrably, Mr. Toro is an
ideal candidate for home
confinement, and his request
for it should be granted by
the Court.2
Nor should
the Court risk Mr. Toro’s life
(and the lives of BOP
personnel and other inmates)
while waiting for some kind of
response from MCC-NY. The
government admits it “has not
received a specific set of
Guidelines from the MCC” and
fails specifically to identify
what procedures, if any, MCC
actually has implemented to
comply with the Attorney
General’s directive that home
confinement be increased. See
Govt. 4/21/20 Letter at
3.
Likewise, while
the government speaks
generally about what the BOP
has done nationwide, the
government provides no
statistics or other facts
showing that the MCC in
particular has increased its
efforts, or is moving with any
alacrity, in making home
confinement determinations
about its inmates. See Govt.
4/21/20 Letter at 3. To the
contrary, it appears from the
government’s letter that MCC
has only “now” begun even to
move on Mr. Toro’s home
confinement request, and
apparently declined to provide
an estimate as to when any
decision on that request will
be made. Id. The mere
possibility that MCC may, at
some unspecified future date,
make a decision regarding Mr.
Toro’s home confinement is
patently insufficient, and
should not delay decision by
the Court. As Attorney General
Barr recognized in his April 3
memorandum, given COVID-19’s
high infection rate and deadly
ferocity, “time is of the
essence” in granting or
denying home confinement. Mr.
Toro should be released to
home confinement
immediately.3
1 Probation has
been able to set up clients
with drug and mental health
counselors who provide
“remote” therapy, and
Probation would be able to do
the same for Mr. Toro.
2 As this Court
noted during the April 21,
2020, telephonic status
conference, in normal
circumstances “the issue of
home confinement toward the
end of a sentence would be
and/or community confinement
centers, that would be a
routine affair. There is
nothing extraordinary about
that. It usually happens
naturally and on its own and
we are alerted – we as judges
are notified – that defendants
that we have sentenced are now
at the Bronx Community
Confinement Center. They can’t
be there now as the Center is
shut down, but this is just a
routine operation.” Tr. at p.
10.
Mr. Toro’s time
at MCC-New York has been far
from easy. Prior to this
pandemic period of lockdown,
which keeps Mr. Toro locked in
all day but for 90 minutes
each week, MCC-New York was in
full lockdown because there
was concern a gun had been
smuggled in and was loose in
the jail. Prior to the
gun-related lockdown, MCC-New
York was locked down because
of the suicide/homicide of
Jeffrey Epstein. Moreover, in
light of this pandemic, on
March 3, or 4, 2020, MCC-NY
shipped some of its inmates to
Otisville. Tyler Toro was one
of the inmates shipped to
Otisville. Then, on March 13,
2020, he was returned back
from Otisville to MCC-New
York, just prior to Otisville
being closed because of the
virus and its inmates being
sent home. Had Mr. Toro
remained at Otisville, he
could have been infected with
the virus or, had he been
lucky, he would have been
released and at liberty today.
See here.
Mr. Toro asks that he be sent
home, like the released
inmates formerly at
Otisville."
On April 21
Judge Berman implored
AUSA Hanft to seek
information from the Bureau of
Prisons, since they both work
for the Justice Department --
a push echoed later on April
21 by EDNY Magistrate Judge
James Orenstein, here.
This SDNY case, which Inner
City Press will continue to
cover, is US v. Toro,
18-cr-218 (Berman).
***
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