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SDNY COURTHOUSE, May 28 – 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, and portions of April 28 transcript, below.

   U.S. District Court for the Southern District of New York Judge Richard M. Berman on April 21 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free after receiving a telephone call from the mother of Tyler Toro whose brother she had previously represented but no longer represents, pointed out the disparity of, for example, Michael Cohen being released still owing two years on his sentence, while Tyler Toro remains detained.

  And now, Paul Manafort has been released.

  On May 13, finally, a date was set for the release of Tyler Toro: May 27.

  But on May 28, in a proceeding which Inner City Press called in to and covered, it was reported that Tyler Toro is STILL in jail - now pending a TB test. Shroff urged an order to be issued; Judge Berman responded that her approach was wrong. Both, we emphasize, intend only the best. But what will work? Inner City Press will stay on the case.

Here is a portion of the April 28 transcript, the intro, point of Sabrina Shroff and reflection by Judge Berman, whole transcript on Scribd here and if that's blocked here free outside of paywall on Patreon, here: "THE COURT: Great. This is judge Berman. Who is that?

Inner City Press; not a participant.

THE COURT: OK. I got it. Thank you very much. So we can begin, I think we might start with an update if anybody has any more recent information following our last conference on April 21, 2020.

MS. HANFT: Yes, your Honor. Elizabeth Hanft, for the government. Good afternoon. I do have a bit of an update for the Court. Since our last conference and since I submitted my letter, I have had multiple conversations with legal staff at the Metropolitan Correctional Center both written and oral. And my understanding is that the home confinement request is making its way through the MCC system. I understand that the unit manager has submitted Mr. Toro's proposed address at which he would be living to the U.S. probation office which is part of the procedure. The U.S. Probation Office determines whether the residence is reapproved. If it is approved, then the MCC continues to look at all the factors, including the nature of offense, and determine if Mr. Toro meets the home confinement criteria. So, my understanding is it's working its way through the system. They're moving as quickly as they and that's the update that I just received this morning....

MS. SHROFF: OK. So my application to the MCC on behalf of Tyler Toro was sent in on April 12. They have on 30 days which takes us to May 12. Could I ask the Court please to schedule an appearance with us on May 13 or require a status update letter so that in the event the MCC does not keep defense counsel involved, at least the government is on notice that we should somehow be told because we were not told about any progress that the MCC had allegedly made until this appearance today or at least that the government copy us on what the MCC is telling them so that we would be in a position to come back to the Court should things not go the way we all hope that they do go. Because my concern is that on the 30th day, maybe he will, maybe he went be released and I will have no mechanism.

THE COURT: I certainly get it. By the way, it was my intention to set another status conference in the first week in May. So, say roughly -- today is the 28th. Let's say a week to ten days from now. Chelsea, what have we got let's say around May 8 if that's a weekday?

MR. DICHIARA: That's a Friday, judge.

MS. TABOLT: How is nine a.m. conference?

THE COURT: That works for me. If you are all, if that is satisfactory to all of you, we'll say May 7 at nine a.m.

MS. HANFT: That's fine, your Honor.

MS. SHROFF: I did listen to the Court's ruling on the Musumeci case and contacted that lawyer there. So, I just wanted to say that we appreciate the help that's coming from the Court. I do think it's helping. So, I appreciate that.

THE COURT: I have to say I think I said it to somebody else. I think in many ways these cases that are related to the COVID-19 is perhaps the most important work we federal judges have done. At least that's my point of view. It's a little bit I would say out of the ordinary but the issues are very crucial and we're all impacted by this pandemic and I think we're all doing the best we can to be cognizant that these defendants, these inmates are clearly in harm's way. And where ever it's appropriate and possible we're trying to get them out of harm's way and principally into home confinement.   I had one with not quite a situation but he needed mental health treatment and was transferred from the MCC to Butner so he could get that treatment. He is ultimately going to come back hopefully to the S.D.N.Y. So, I am trying to be cognizant of all the relevant factors and I am pursuing them on behalf of each of the defendants." We'll have more on this - already something on supervised release, here.

 On April 28 at 2 pm Judge Berman held another hearing, with both sides updating. Shroff expressed worry Tyler Toro may be moved to Allenwood. Judge Berman asked for updates, and set the next conference for May 7. Inner City Press will continue to cover this case.

From Shroff's April 22 letter: "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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