USCA Case #20-3033 Document #1850349 Filed: 07/06/2020 Page 1 of 26

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA, )

)
Appellee, ) Docket No. 20-3033
)
v. )
)
ROGER JASON STONE, JR., )
)
Appellant. )

EMERGENCY MOTION OF ROGER J. STONE JR:

1. TO EXTEND SURRENDER DATE DUE TO EXCEPTIONAL

CIRCUMSTANCES PRESENTED BY STONE’S HEALTH
CONCERNS IN LIGHT OF THE COVID-19 PANDEMIC;

2. FOR EXPEDITED ACTION BY JULY 13, 2020; OR, IN THE

ALTERNATIVE,

3. FOR AN ORDER STAYING THE DISTRICT COURT’S ORDER,

DATED JUNE 26, 2020 (ECF # 389), PENDING THE RESOLUTION
OF THE INSTANT MOTION.

INTRODUCTION

This is an emergency appeal from the denial of an unopposed motion to

postpone Roger J. Stone, Jr.’s surrender date in light of the COVID-19 pandemic

and the medically documented life-threatening health risks that Stone would face if

incarcerated at this time. Accordingly, Stone respectfully moves the Court for an

order extending his date to surrender to the custody of the Bureau of Prisons

(“BOP”) to serve the sentence imposed in United States v. Stone, 19-cr-18 (ABJ),

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for 51 days, from July 14, 2020 until September 3, 2020. Cir. R. 9(b)(1). Stone

was released on bail following his arrest on January 25, 2019, and has remained on

bail since, including following his conviction and sentencing. The appeal of

Stone’s judgment of conviction and sentence is pending in this Court, with Stone’s

brief due on August 17, 2020.

Stone was convicted for violating 18 U.S.C. § 1505 (Count 1), § 1001(a)(2)

(Counts 2-6), and § 1512(b)(1) (Count 7) and, on February 20, 2020, the district

court imposed sentence as follows: Count 1, 40 months imprisonment, 24 months

supervised release, and a $20,000.00 fine; Counts 2-6, 12 months imprisonment;

Count 7, 18 months imprisonment; the sentences on Counts 2-7 to run concurrently

with the sentence on Count 1. Cir. R. 9(b)(1); Exhibit A, Judgment of Conviction

(ECF # 328).

On June 23, 2020, Stone filed an Unopposed Motion to Extend Surrender

Date (ECF # 381), from June 30, 2020 to September 3, 2020, supported by

undisputed medical evidence filed under seal, establishing that, in light of the

COVID-19 pandemic, requiring Mr. Stone’s incarceration at this time would pose

a life threatening risk. See Sealed Exhibit “C” hereto; (Sealed ECF #382). On June

26, 2020, the district court issued a Memorandum Opinion in which it denied, in

part, and granted, in part, Stone’s unopposed motion (ECF # 386). Cir. R. 9(b)(2);

Exhibit B, Memorandum Opinion (“Mem. Op.”) (ECF # 389). In sum, the district

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court has ordered Stone to surrender on July 14, 2020 and changed his conditions

of release to require home confinement until that date. Mem. Op. at 5.

As discussed below, in denying Stone’s Unopposed Motion to Extend

Surrender Date, the district court largely failed to address the evidence that Stone

provided that demonstrates that he is at considerable risk from serious health

consequences, including death, if his surrender date is not extended until

September 3, 2020, failed to give adequate deference to the government’s uniform

policy not to oppose surrender date extension motions due to the pandemic, and

failed to consider authority from around the country on this issue under similar

circumstances. Accordingly, this Court should order the extension of Stone’s

surrender date from July 14, 2020 to September 3, 2020 to avoid the life-

threatening risks that he would face in a BOP facility at this time.

It is further requested that the Court take action on this application on or

before July 13, 2020 or that it stay enforcement of the district court’s order until

the resolution of this application to avoid the irreparable harm that would occur if

Stone were required to surrender to BOP on July 14, 2020.

Government counsel has advised that before this Court, it consents to having

the Motion handled in an expedited manner and does not oppose the entry of a stay

if the Motion is not decided prior to July 13, 2020; but it intends to defend the

lower court’s decision, notwithstanding its position below.

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MEMORANDUM OF LAW AND FACT

It is respectfully submitted that, given his medical conditions, supported by

undisputed medical evidence filed under seal in the court below, and the current

conditions with respect to the COVID-19 pandemic within BOP facilities, which

render Stone at grave risk of serious complications if infected with COVID-19,

Stone should not be required to surrender to BOP on July 14, 2020.

A. The Controlling Legal Framework.

This Court has jurisdiction to review the district court’s order, pursuant 18

U.S.C. § 3145(c), 28 U.S.C. § 1291, and Fed. R. App. P. 9. See United States v.

Roeder, 2020 U.S. App. LEXIS 10246, *3 (3d Cir. 2020) (reversing district court’s

denial of unopposed motion and extending surrender date). Under the controlling

statutory framework, this Court is empowered to extend Stone’s surrender date.

The district court has consistently found that Stone does not pose either a

danger to the community or a risk of flight, including following sentencing (ECF #

334, Feb. 20, 2020 Tr. 91: “Under 18 U.S. Code Section 3143(a)(2), I find by clear

and convincing evidence you’re not likely to feel or pose a danger to any other

person or the community, and you will be permitted to voluntarily surrender on a

date no earlier than two weeks after the Court has ruled on your pending motion

for a new trial.”). The government did not challenge that finding in response to

Stone’s Unopposed Motion to Extend Surrender Date and the district court

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effectively reaffirmed its finding in its Memorandum Opinion denying the motion.

Consequently, this Court is not called upon to review either of those issues.

Stone’s Unopposed Motion to Extend Surrender Date was premised on “the

exceptional circumstances arising from the serious and possibly deadly risk he

would face in the close confines of a Bureau of Prisons facility, based on his age

and medical conditions . . . [which] make the consequence of his exposure to the

COVID-19 virus in a prison facility life-threatening.” ECF # 381 at 1. This Court

reviews de novo the issue of the existence of “exceptional circumstances.” Roeder,

2020 U.S. App. LEXIS 10246, *3 (finding that it must “independently determine

whether relief is appropriate” while giving “careful consideration to the reasons

offered by the district court” and extending surrender date due to exigency of the

circumstances).

1. Stone’s Unopposed Motion to Extend Surrender Date Is Consistent

With the Department of Justice’s Uniform Policy on Extending
Surrender Dates in Light of the COVID-19 Pandemic Risks.

As the government advised the district court, the Department of Justice has a

uniform policy, in light of the COVID-19 pandemic, issued through a formal

directive, not to oppose a defendant’s request to extend a voluntary surrender date

for up to 60 days, unless the defendant poses an immediate public safety or flight

risk. (ECF # 385 at 1). Consistent with that policy, the government did not oppose

Stone’s motion to extend his surrender date until September 3, 2020. The court

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unduly minimized this uniform policy and attempted to discount it based on the

notion that there purportedly were no COVID-19 positive inmates at FCI Jesup

where Mr. Stone is designated to surrender. (Mem. Op. at 2-3 & n.1). This is

completely irrelevant to the uniform policy and ignores other authority on the role

such a factor should play in the analysis, including authority concerning FCI Jesup.

There now is rapidly developing information dehors the record,

demonstrating that these facts have materially changed, with at least 6 inmates and

5 staff at FCI Jesup testing COVID-19 positive. The facility in quarantine status.1

The BOP website acknowledges 6 positive COVID-19 inmates at Jesup.2

1
Ordinarily, Movant would not submit facts or argument based on evidence dehors
the record; however, this is a dynamic situation, with potentially life and death
consequences. The undersigned began receiving unsolicited information from
inmates at FCI Jesup on July 3, 2020, that inmates had tested positive. All
information was immediately conveyed to government counsel on July 3rd and on
a continuing basis through July 5th, including reports that staff had tested positive.
Instead of providing a substantive response, government counsel scheduled a
conference call among counsel for 11:00 a.m., July 6th. It provided some
information then; but at 2:13 p.m. on July 6th, government counsel provided
updated information, acknowledging now that 5 staff members at the FCI Jesup
complex (Medium) have tested COVID-19 positive and that 6 inmates have Abbott
tested COVID-19 positive and are awaiting confirmation (4 at the Camp; 2 at the
Medium).
Obviously, these facts undermine a premise of the lower court’s decision. The
preferred course might have been a motion for reconsideration; however, the lower
court’s decision is flawed on other grounds as well, as demonstrated herein and,
timing is a critical factor here vis a vis the July 14, 2020 surrender date at issue and
under Circuit Rule 27(f).
2
https://www.bop.gov/coronavirus/

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2. Stone’s Unopposed Motion is Consistent With Decisions from

Courts Around the Country Regarding Surrender During the
COVID-19 Pandemic.

Courts across the country have recognized the serious risks presented by the

COVID-19 pandemic and have extended surrender dates accordingly. Roeder,

2020 U.S. App. LEXIS 10246, *3 (reversing district court’s denial of unopposed

motion and extending surrender date); United States v. Sharp, No. 19-cr-03 (D. Mt.

April 14, 2020) (ECF # 45) (extending deadline for self-surrender “in light of the

COVID-19 pandemic and rapidly evolving public health situation in federal

detention facilities”); United States v. Grobman, 2020 U.S. Dist. LEXIS 63602

(S.D. Fla. March 29, 2020) (Same); United States v. Powell, 2020 U.S. Dist.

LEXIS 62077 (N.D. Cal. March 27, 2020) (Same); United States v. Garlock, 2020

U.S. Dist. LEXIS 53747 (N.D. Cal. Mar. 25, 2020) (extending surrender date until

September 2020, and inviting a motion to extend it further in September; “[b]y

now it almost goes without saying that we should not be adding to the prison

population during the COVID-19 pandemic if it can be avoided”); United States v.

Matthaei, 2020 U.S. Dist. LEXIS 55110 (D. Idaho March 16, 2020) (Same).

3. Stone’s Unopposed Motion Is Consistent With the Decisions of

Courts in this District With Respect to Surrender During the
COVID-19 Pandemic.

In this district, consistent with the government’s uniform policy, courts have

also consistently extended surrender dates. See, e.g., United States v. Benjamin,

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18-cr-0121 (PLF) (April 28, 2020); United States v. Gana, 19-cr-0305 (CJN)

(D.D.C. June 22, 2020).

In Benjamin, the court extended the defendant’s surrender date from June 5,

2020 until September 3, 2020, an even longer extension than Stone requested,

based on the defendant’s health risks in light of the pandemic. In Gana, the court

extended the defendant’s surrender date twice, once from March 31, 2020 until

June 30, 2020, and then from June 30, 2020 until August 30, 2020, also based on

health risks related to incarceration during the pandemic. Gana, 19-cr-305 at ECF

## 37, 40, 42. As discussed below, notwithstanding the district court’s effort to

distinguish them, Stone’s case is more compelling than Benjamin and Gana.

4. The Exceptional Circumstances Presented by the COVID-19

Pandemic Have Led Courts Around the Country to Take
Extraordinary Action.

Courts around the country, in recognition of the exceptional circumstances

presented by COVID-19, have even granted bail in cases in which defendants did

not otherwise meet the statutory criteria. United States v. McLean, 19-cr-380-

(RDM) (D.D.C. March 28, 2020) (granting bail notwithstanding the defendant’s

lengthy criminal history, dangerousness, weight of the offense, nature of the

charges, and other statutory factors requiring detention, based on COVID-19 and

the risk it poses); see also United States v. Meekins, 18-cr-222 (APM) (D.D.C.

March 31, 2020) (ECF # 75) (granting release pending sentencing pursuant to §

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3145(c), finding “exceptional circumstances” based on defendant’s risk from

Covid-19); United States v. Harris, 2020 U.S. Dist. LEXIS 53632, *15, 18 (D.D.C.

March 27, 2020) (same); United States v. Castelle, 18-cr-15 (AKH) (S.D.N.Y.

March 31, 2020) (ECF # 673) (granting bail pending appeal based on defendant’s

medical condition, age, and recent pneumonia-related surgery without finding of

“substantial question”); United States v. Avenatti, 2020 U.S. Dist. LEXIS 56258

(C.D. Cal. Mar. 25, 2020) (sua sponte inviting defendant to reapply for release

based on risk from COVID-19 in prison) United States v. Barkman, 2020 U.S.

Dist. LEXIS 45628 (D. Nev. March 17, 2020) (suspending intermittent

confinement condition of probation due to COVID-19 pandemic);

In Harris, 2020 U.S. Dist. LEXIS 53632, the court found that § 3145(c)

provides authority to grant bail pending sentencing based on the exceptional

circumstances arising from the COVID-19 pandemic and the extraordinary risks to

inmates. The court reached this conclusion even though the defendant made no

individualized showing of any medical condition that exacerbated the health risk

posed by COVID-19. Id. at *15-*18.

In McLean, 19-cr-380 (RDM), in the context of pretrial detention, the

district court found that COVID-19 poses such a serious threat for those who are

incarcerated that it has created a situation that falls “outside the congressional

paradigm” for the consideration of presumptions regarding bail such that it “not

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only rebuts the statutory presumption of dangerousness, see 18 U.S.C. § 3142(e),

but tilts the balance in favor of release.” Id. at ECF # 21.

B. Exceptional Circumstances Warrant Extending Stone’s Surrender Date.

This Court should extend Stone’s surrender date until September 3, 2020,

given “that there are exceptional reasons why [Stone’s] detention would not be

appropriate,” 18 U.S.C. §3145(c), at the present time. United States v. Roeder,

2020 U.S. App. LEXIS 10246, *3 (3d Cir. 2020) (reversing district court’s denial

of unopposed motion and extending surrender date).

1. The District Court Failed to Give Sufficient Weight to Stone’s Health

Risks.

Given the undisputed medical evidence concerning Stone’s health risks, the

circumstances in this case are far more compelling than in Roeder. As explained to

the district court, this motion is based on the exceptional circumstances arising

from the serious and possibly deadly risk that Stone would face in the close

confines of a BOP facility, based on his age and medical conditions. Presentence

Report, dated January 16, 2020, at ¶¶ 103-04 (ECF # 327) (“PSR”); see also,

Letter from Stone’s Treating Physician, Dr. Islon Woolf, dated June 17, 2020

(“Woolf Ltr.”) Exhibit “C” Sealed; (ECF # 383) (Sealed). Indeed, Stone’s medical

conditions make the consequences of his exposure to COVID-19 in a prison

facility life-threatening. Id.

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His doctor recommends the following:

I highly recommend that he maintain strict quarantine

conditions []. He should not be in any situations that
would expose him to the SARS-COV-2 virus. He needs
to maintain at least 6 feet distance from people. He should
avoid closed quarters with many people. He must
completely avoid exposure to people with high rates of
infections. He needs to avoid shared facilities like shared
bathrooms. In my opinion, I do not see how any of these
conditions could be met in prison. I am concerned for his
health.

ECF # 383, Woolf Ltr.3

The district court discounts Dr. Woolf’s letter based largely on his use of the

phrase “reasonabl[e] speculation.” Mem. Op. at 2. The district court fails to

acknowledge, however, that Dr. Woolf explains that the “lack of relevant data and

guidance for patients suffering” from Stone’s condition is “very concerning” but

that, based on the nature of the condition, it is reasonable to speculate that Stone is

“at greater risk of infection and greater risk of complications from COVID-19.”

Exhibit “C” (Sealed) (ECF # 383).

In addition, Dr. Woolf also states that Stone’s age, combined with his

serious medical conditions (detailed under seal), “significantly increase[es] his risk

of COVID-19, COVID-19 complications, and COVID-19 death.” Id. Wholly

ignoring Dr. Woolf’s medical opinion, the district court suggests that Stone would

3
Consistent with the district court’s approach, this motion contains quotations from
Dr. Woolf’s letter, but does not reveal any sensitive personal medical information.

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not be in danger given that his condition is “medically controlled” and that there

are currently no reported COVID-19 cases in the institution to which he has been

designated. Mem. Op. at 2-3. The district court, however, makes no allowance for

the fact that it may not be possible for Stone’s medical conditions, which require

close monitoring and strict compliance with the directions of his physician, to

remain controlled within a BOP facility.

2. The District Court Failed to Give Stone the Same Consideration as

Similarly Situated Defendants.

The district court states that “the guiding principle must be that Mr. Stone is

entitled to no more and no less consideration than any other similarly situated

convicted felon.” Mem. Op. at 3. As discussed below, however, the district

court’s decision violates that principle.

The district court justifies its decision in part on the ground that BOP

previously changed Stone’s surrender date from April 23, 2020 to June 30, 2020

and also on the fact that BOP declined to extend the date past June 30, 2020.

Mem. Op. at 3-4. The district court, however, ignores the fact that BOP adjusted

the April 23rd surrender date because it conflicted with the district court’s order of

April 16, 2020 in which it directed that Stone could not be required to surrender

prior to April 30, 2020. Order Denying Motion for New Trial, dated April 16,

2020 (ECF # 361). BOP, therefore, had no discretion and was required to extend

Stone’s April 23rd surrender date to comply with the district court’s order.

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Furthermore, implicit in the district court’s rationale is that, because BOP

previously extended Stone’s surrender date based on the COVID-19 pandemic, he

is not entitled to any additional time. Mem. Op. at 2-3. There is no apparent logic

to this conclusion. Stone continues to have medical conditions that his treating

physician reasonably believes “significantly increase[] his risk of COVID-19,

COVID-19 complications, and COVID-19 death.” Exhibit “C” (Sealed).

Moreover, as discussed further infra, the COVID-19 pandemic continues to

explode and, notwithstanding the current conditions reported at the institution to

which Stone is scheduled to report, the dangers from COVID-19 in the prison

system are largely unabated and, in fact, appear to be increasing. See, e.g., “The

Coronavirus Crisis Inside Prisons Won’t Stay Behind Bars,” New York Times,

June 25, 2020;4 “How U.S. Prisons Became Ground Zero for COVID-19,” Politico,

June 25, 2020.5 Thus, the notion that the previous extension of Stone’s surrender

date weighs against the instant application is wholly unsupported by reason.

As noted above, the district court also seeks to distinguish Stone from the

defendants in United States v. Benjamin, 18-cr-0121 (PLF) and United States v.

Gana, 19-cr-0305 (CJN) (D.D.C. June 22, 2020)—two cases that Stone cites in his

4
https://www.nytimes.com/2020/06/25/opinion/coronavirus-prisons-
compassionate-release.html
5 https://www.politico.com/news/magazine/2020/06/25/criminal-justice-prison-

conditions-coronavirus-in-prisons-338022

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unopposed motion below in which the government similarly did not oppose the

defendants’ applications to extend their surrender dates based upon their health

risks due to COVID-19—on the grounds that the defendants were not convicted of

intimidating a witness and that there is no indication that either previously violated

conditions of release. Mem. Op. at 4.

Notwithstanding the differing charges in the cases, the district court has

allowed Stone to remain on bail since the date of his arrest, including following

conviction and again following sentencing, at which time it reaffirmed its previous

finding that Stone presents neither a risk of flight nor a danger. Feb. 20, 2020 Tr.

91. In addition, in an April 16, 2020 order, the district court removed some of the

conditions of release that it had previously imposed. ECF # 361. Thus, the

claimed distinctions between the cases are far less significant than the district court

indicates.

Furthermore, the district court neglects a number of critical similarities

between, on the one hand, Benjamin and Gana, and, on the other, the instant

matter, which undercut key aspects of the rationale for its decision.

First, with respect to Benjamin, the district court fails to mention that the

court entered the judgment of conviction in that case on February 20, 2020, i.e., the

same day that the district court entered judgment in Stone’s case, and that the

defendant’s surrender date was extended from June 5, 2020 until September 3,

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2020, i.e., the same date that Stone requests. Benjamin, 18-cr-0121 at Dkt. # 71,

76. Thus, contrary to the district court’s indication that Stone has already received

ample consideration, Mem. Op. at 3, if required to surrender on July 14, Stone will

receive far less consideration than the defendant in Benjamin, which conflicts with

the guiding principle identified by the district court.

Second, in Gana, the court entered the judgment of conviction on February

24, 2020, i.e., just four days after the district court entered Stone’s judgment, and

the defendant’s surrender date was twice extended, once with the government’s

consent, from March 31, 2020 until June 30, 2020, and then, without opposition

from the government, from June 30, 2020 until August 30, 2020. Gana, 19-cr-305

at Dkt. # 37, 40, 42. Thus, not only is the defendant in Gana currently slated to

remain on bail from the date judgment was entered on February 24, 2020 until at

least August 30, 2020, the defendant has received two extensions—something to

which the district court suggests Stone is not entitled because it would unfairly

advantage him as compared to other defendants. It is the district court’s denial of

Stone’s motion, however, that unfairly disadvantages Stone as compared with

other defendants who have sought to have their surrender dates extended without

opposition from the government. Thus, here, too, the district court does not adhere

to its guiding principle.

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Stone is far more similarly situated to the defendants in Benjamin and Gana

than the district court indicates; yet only Stone is currently required to report to

prison in the height of the pandemic, notwithstanding his documented health

problems, which his physician believes place him at heightened risk not only of

infection and complications from infection, but of death. Exhibit “C” (Sealed).

Moreover, though expressed in terms of protecting both Stone’s “stated

medical concerns [and] . . . the health of other inmates,” the district court’s

addition of the condition of home confinement is unnecessarily punitive. Mem.

Op. at 4-5. First, though the district court purports to rely on Dr. Woolf’s letter to

support the requirement of home confinement, read in its entirety, Dr. Woolf

cannot fairly be construed to have recommended that Stone be required, under

supervision of Pretrial Services and subject to electronic monitoring, to be

confined to his home for 24 hours a day for 18 days.

Second, there is no general requirement that prospective inmates remain on

home confinement for 14 days prior to surrender. This requirement appears to be

uniquely designed for Stone. Pursuant to current BOP policy, “newly-arriving

BOP inmates are processed through quarantine . . . sites and screened for COVID-

19 exposure risk factors and symptoms.”6 The district court’s order implies that it

is more concerned about Stone potentially transporting COVID-19 into FCI Jesup

6
https://www.bop.gov/coronavirus/covid19_status.jsp

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than with Stone contracting it in the facility, a consideration not present in other

cases, given the procedures that BOP has in place.

Third, the district court maintains that the condition of home confinement is

imposed in accordance with the guidance provided by the Attorney General, Mem.

Op. at 3, but fails to note that the Attorney General’s guidance is for inmates who

are released to home confinement to complete their sentences but technically

remain in BOP custody. Here, by contrast, Stone is not in BOP custody and will

not receive credit toward his sentence for any time spent confined to his home.

Moreover, as noted above, the government has a uniform policy not to object to

requests to extend surrender dates in light of the pandemic, which is not true for

compassionate release applications.

The district court’s home confinement requirement, therefore, does not

accord with his doctor’s recommendations or those of the Attorney General; is

unnecessarily restrictive; and fails to comport with the district court’s stated

guiding principle.

The district court also points out that the government’s decision not to

oppose Stone’s motion is inconsistent with its opposition in other cases to

applications for compassionate release. Mem. Op. at 3. But, the district court

provides no consideration for the fact that an application for compassionate release

differs from an application to extend a surrender date in terms of both the standards

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that apply, as well as the substantive relief sought. An application for

compassionate release seeks to terminate a sentence prematurely, by days, weeks,

months, or, in some cases, years. By contrast, extending a surrender date does not

reduce the overall length of a sentence, it merely delays its commencement.

Consequently, there is nothing unreasonable about the government’s adherence to

its uniform policy, particularly given the health risks present here.

3. The District Court Failed to Give Adequate Consideration to the

Severity of the Risk Arising from the COVID-19 Pandemic in BOP
Facilities.

The district court also relied on the fact that BOP has not reported any cases

of COVID-19 in FCI Jesup, where Stone has been designated. Mem. Op. at 2-3,

n.1. This factual premise no longer applies (see infra at n.1); but the lower court

erred on this point even under the mistaken factual premise. The district court did

not consider the fact that only 30 of 1409 inmates at the institution had been tested.

Moreover, BOP reports that it sometimes tests the same person more than one

time, so it may be that fewer than 30 inmates have been tested.7 Also of concern is

that the number of cases in Georgia has recently spiked, with total cases now up to

89,489;8 see also “‘From bad to worse’: Georgia’s COVID cases, hospitalizations

7
https://www.bop.gov/coronavirus/
8
https://www.google.com/search?client=safari&rls=en&q=georgia+covid+cases&i
e=UTF-8&oe=UTF-8

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on the rise as state reopens.”9 This is a factor which must be considered with staff

going in and out of FCI Jesup.

The recent spike in cases within Georgia is a factor that a district court in

Georgia recently weighed in finding that extraordinary and compelling

circumstances exist and granting a compassionate release application from an

inmate at the satellite prison camp at FCI Jesup, which is the section of the facility

to which Stone is designated:

Finally . . . the Court notes that Asher makes a compelling

argument particular to FCI Jesup. From Wednesday, June
10, 2020, to Thursday, June 11, 2020, the number of new
COVID-19 cases in Georgia jumped over 26%, the largest
jump in cases since Georgia reopened in early May. . . .
Since Asher’s counsel filed the Motion for Compassionate
Release, the number of reported COVID-19 cases in
Wayne County increased from 17 to 33. . . . The number
of cases in surrounding counties has also increased.

Asher reports that there is no COVID-19 testing at FCI

Jesup, that inmates are leaving the camp and returning
after working, seldom wearing masks or personal
protective equipment. He also reports that the BOP staff
hardly ever wear masks, even when preparing food . . . .

United States v. Asher, 2020 U.S. Dist. LEXIS 111205, *18-19 (N.D. Ga., June 15,

2020). The Asher court also notes that the physical layout of the institution and the

dormitory sleeping arrangements render social distancing virtually impossible and

9
https://www.wjcl.com/article/from-bad-to-worse-georgias-covid-cases-
hospitalizations-on-the-rise-as-state-reopens/32890763#

19
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the spread of infection more likely. Id. at 11; United States v. Feucht, 2020 U.S.

Dist. LEXIS 95104 (S.D. Fla., May 28, 2020) (ordering release from Jesup);

United States v. Ozols, 16-CR-692-7 (JMF) (S.D.N.Y., June 2, 2020) (ECF #488)

(ordering release from Jesup); see also United States v. Ullings, 2020 U.S. Dist.

LEXIS 830104 (N.D. Ga. May 12, 2020) (discussing rising COVID-19 infections

in Georgia);

Furthermore, the risk of an outbreak at FCI Jesup should be considered in

conjunction with the fact that, across the BOP system, testing has been sparse and

the rate of infection has been high. BOP reports that, as of June 30, 2020, 21,525

inmate tests for COVID-19 have been completed, 2,697 are pending, and 6531

inmates have tested positive for COVID-19.10 It is also concerning that BOP has

tested only 21,525 inmates among a population of 133,384 inmates in BOP prisons

and another 13,992 in BOP community facilities. Tragically, 94 inmates have died

from the COVID-19 virus, along with one staff member.11

The heightened risk from COVID-19 in the prison system has been widely

recognized. See United States v. Amarrah, 2020 U.S. Dist. LEXIS 80396 (E.D.

Mich., May 7, 2020) (ordering release despite no confirmed COVID-19 cases at

FCI Loretto; citing multiple dangers and supporting studies). As a court in the

10
https://www.bop.gov/coronavirus/
11
https://www.bop.gov/coronavirus/

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Southern District of New York put it, “[t]he risk of contracting COVID-19 in

tightly-confined spaces, especially jails, is now exceedingly obvious.” Basank v.

Decker, 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020). More recently, on

June 18, 2020, the Marshall Project issued a chilling report about the ongoing

disaster and repeated missteps within the BOP that have made so many federal

prisons hotbeds for the spread of the COVID-19 with deadly results.12

In short, the danger to Stone under the current circumstances is undeniable.

Indeed, it is respectfully submitted that the Court never should have taken comfort

from the lack of any reported cases at FCI Jesup. See, e.g., United States v.

Feucht, 2020 U.S. Dist. LEXIS 95104, *8 (S.D. Fla., May 27, 2020) (discussing

FCI Jesup and noting how, due to the lack of universal testing of inmates and staff,

the number of reported cases may be far lower than the actual number of cases and

that, irrespective of current numbers at any given facility, “[c]ourts around the

country have recognized that the risk of COVID-19 to people in prison is

‘significantly higher than in the community, both in terms of risk of transmission,

exposure and harm to individuals who become infected.’”); see also “Federal

Judges Are Relying on Bureau of Prisons COVID-19 Numbers to Make Rulings,”

12https://www.themarshallproject.org/2020/06/18/i-begged-them-to-let-me-die-
how-federal-prisons-became-coronavirus-death-
traps?fbclid=IwAR0t7C6pvpfkTmMWuziJSMDq8eoWbZ85x02xDny_-
EQ2h2eXQEHpQ__cg9w

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Forbes May 20, 2020 (discussing lack of testing by BOP and consequent low

number of reported cases);13 “CDC Says U.S. Has ‘Way Too Much Virus’ to

Control Pandemic as Cases Surge Across Country,” CNBC, June 30, 2020;14 “A

Devastating New Stage of the Pandemic,” The Atlantic, June 25, 2020;15 “Fighting

to Release Prisoners from a COVID-19 Death Sentence,” The American Project,

June 24, 2020.16

The situation is further exacerbated by the fact that no visits, including

attorney-client visits, are permitted at FCI Jesup, because of the COVID-19

pandemic. Courts have long recognized that is it far more difficult to communicate

with a client for purposes of his appeal when he is in custody. Garza v. Idaho, –

U.S. –, 139 S. Ct. 738, 745, 203 L. Ed. 2d 77 (2019); Peguero v. United States, 526

U.S. 23, 26 (1999) and here that difficulty is far greater, in light of the COVID-19

restrictions in place, limiting phone access as well. These problems, implicating

the Sixth Amendment right to effective assistance of appellate counsel, are fully

avoidable, with a surrender date extension.

13
https://www.forbes.com/sites/walterpavlo/2020/05/20/federal-judges-are-relying-
on-bureau-of-prisons-covid-19-numbers-to-make-rulings/#7d87472412c7
14 https://apple.news/A9wTp-0LLQ86Jtq7XQ-dBTA

15 https://apple.news/AVEFF7j2LQlqZdZ63mFox2w

16 https://prospect.org/api/amp/justice/fighting-to-release-prisoners-from-covid-19-

death-sentence/

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CONCLUSION

For the reasons set forth above, including that that Stone is not a danger or a

flight risk and has serious medical issues, combined with the exceptional

circumstances that exist in the prison system as the result of the COVID-19

pandemic, and the lack of any reasonable basis to deny Stone’s unopposed motion

to extend his surrender date, it is respectfully submitted that this Court should (a)

extend Stone’s surrender date until September 3, 2020; (b) reinstate the bail

conditions in effect prior to the district court’s order, dated June 26, 2020; (c) rule

on this application on or before July 13, 2020 to avoid the irreparable harm that

would ensure were Stone required to surrender on July 14, 2020, or, in the

alternative, stay the district court’s order (ECF # 389) until the resolution of this

application; and (d) grant such other and further relief as the Court deems just and

proper.

Dated: July 6, 2020

Respectfully submitted,

/s/ Seth Ginsberg

/s/ David I. Schoen
Counsel for Appellant Roger J. Stone, Jr.

David I. Schoen, Attorney at Law Seth Ginsberg

DC Bar No. 391408 Attorney at Law
2800 Zelda Road, Suite 100-6 299 Broadway, Suite 1405
Montgomery, Alabama 36106 New York, New York 10007
Phone: 334-395-6611 Phone: 212-227-6655
E-Fax: 917-591-7586 Fax: 646-607-8597

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E-Mail: DSchoen593@aol.com Email: srginsberg@mac.com

Schoenlawfirm@gmail.com

CERTIFICATE OF COMPLIANCE

1. This motion complies with the type-volume limitation of Fed. R. App. P.

27(d)(2)(a) because it contains 5192 words, excluding the parts of the motion

exempted by the Rule.

2. This motion complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

motion has been prepared in a proportionally spaced typeface using Microsoft

Word in 14 point Times New Roman font. Circuit Rule 27(d)(1)(E).

s/David I. Schoen
Attorney for Appellant

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CERTIFICATE

Undersigned counsel hereby certifies that Roger J. Stone, Jr. is not pursuing

the appeal of his conviction and sentence for purposes of delay.

s/Seth Ginsberg__________
SETH GINSBERG

Attorney for Appellant

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CERTIFICATE OF SERVICE

I hereby certify that on July 6, 2020, I electronically filed the foregoing and

the accompanying attachments with the Clerk of the Court using CM/ECF. I also

certify that the foregoing document and the accompanying attachments are being

served this day on the United States Attorney’s Office, via ECF and email.

I further certify that counsel communicated by telephone with the Clerk of

the Court and with government counsel regarding the need for expedited action on

this motion.

By: /s/ David I. Schoen

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EXHIBIT A

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EXHIBIT B

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Crim. Action No. 19-0018 (ABJ)
)
ROGER J. STONE, JR., ) *** SEALED ***
)
Defendant. )
____________________________________)

MEMORANDUM OPINION

Defendant Roger J. Stone has filed a motion seeking an extension of the date he must
surrender to the Bureau of Prisons (“BOP”) to begin serving his sentence. Unopposed Mot. to
Extend Surrender Date [Dkt. # 381] (“Def.’s Mot.”).
On November 15, 2019, Stone was convicted of obstructing a Congressional proceeding,
threatening a witness, and five counts of lying to Congress. See Verdict Form [Dkt. # 260]. On
February 20, 2020, the Court sentenced him to a term of forty months of incarceration, and it
ordered that he must self-surrender when notified, but no earlier than fourteen days after the
Court ruled on the then-pending motion for new trial. Judgment [Dkt. # 328] at 2. The
defendant has since been directed to report on June 30, 2020.
A week before his designated report date, defendant filed the instant motion asking the
Court to extend his voluntary surrender date to September 3, 2020 in recognition of “his
heightened risk of serious medical consequences from exposure to the COVID-19 virus in the
close confines of a BOP facility.” Def.’s Mot. at 1. He also pointed to memoranda from the
Attorney General endorsing the increased use of home confinement during the COVID-19
pandemic. Id. at 2, citing Memorandum from the Attorney General to Director of BOP,
“Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic”
(March 26, 2020) (“Mar. 26, 2020 AG Memo. to Dir. of BOP”); Memorandum from the
Attorney General to Director of BOP, “Increasing Use of Home Confinement at Institutions
Most Affected by COVID-19” (April 3, 2020).
Defendant asserts that he would face “possibly deadly risk . . . in the close confines of a
Bureau of Prisons facility,” Def.’s Mot. at 1, citing Revised Final Presentence Investigation

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Report [Dkt. # 327] ¶¶ 103–04 (Sealed), and he has provided the Court with a letter from his
treating physician. Physician Letter [Dkt. # 383] (Sealed). There is a considerable body of
public information concerning the undeniable risk of contamination in prison settings in general,
and it is essential to treat this information seriously. However, the defendant does not point to
anything other than his doctor’s “[r]easonabl[e] speculation” to support the conclusion that he is
particularly vulnerable to infection or complications from infection for reasons other than his
age. Id.
The defense represented in its pleading that the United States did not oppose the motion.
On June 23, 2020, the Court issued a minute order asking the government to set forth its
position in writing. Min. Order (Jun. 23, 2020). The government informed the Court that its
decision not to oppose the motion was driven solely by guidance from the Department of Justice
and the Executive Office of United States Attorneys that “U.S. Attorney’s Offices should not
object to a defendant’s request to extend a voluntary surrender date for up to 60 days, even at this
stage of the pandemic, unless the defendant poses an immediate public safety or flight risk.”
Gov’t Resp. to Court’s June 23, 2020 Min. Order [Dkt. # 385] (“Gov’t Resp.”) at 4, citing Mar.
26, 2020 AG Memo. to Dir. of BOP. According to the government, “[t]he directive applies to
defendants whether they pled guilty or were found guilty after a trial, and without respect to age,
health, or other COVID-19 risk factors.” Id. The government further explained:
This guidance stems from the Attorney General’s March 26, 2020
Memorandum for Director of Bureau of Prisons on “Prioritization
of Home Confinement As Appropriate in Response to COVID-19
Pandemic,” which directed BOP to utilize home confinement
“where appropriate, to protect the health and safety of BOP
personnel and the people in [BOP] custody.” Available at
https://www.justice.gov/file/ 1262731/download (last viewed June
25, 2020).
Id.
This is a salutary policy, and judges and defendants in this courthouse and others will
welcome its continued evenhanded application.
The Court notes, though, that in its submission, the government also points out that there
are currently no COVID-19 cases at the facility to which defendant has been designated. Gov’t

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Resp. at 3, n.1. 1 This is a factor the government has relied upon in other pleadings filed with this
Court as a reason to oppose motions for compassionate release. See, e.g., United States v.
Mahone, 17-cr-236, Gov’t Opp. to Def.’s Mot. for Compassionate Release [Dkt. # 57] at 18. In
another opposition that remains sealed to protect private medical information, the government
similarly emphasized the absence of infection in a separate facility, and it asserted that the
primary medical condition at issue here – even in an older defendant – did not warrant release
under the Centers for Disease Control guidance since it was “in check.” See United States v.
[REDACTED], 18-cr-[REDACTED][Dkt. REDACTED] (Sealed) at 11 (“For the most part, the
government appreciates and does not dispute the underlying health concerns presented by the
defendant. But such conditions are worth assessing in nuance.”); id. 12–13. Here, defendant’s
condition appears to be – as it has been for some time – medically controlled.
At the end of the day, the guiding principle must be that Mr. Stone is entitled to no more
and no less consideration than any other similarly situated convicted felon.
The difficulty in this case is figuring out who is truly “similarly situated.” Notably here,
the record reflects that the defendant has already received a reprieve of the recommended length
through the good graces of the Bureau of Prisons, an agency within the Department of Justice.
Just one day after the Court ruled on the motion for new trial, in response to a request from the
defense, based on the same concerns that are raised here, the BOP accorded the defendant an
additional sixty days to surrender beyond the fourteen that were required by the Judgment and
Commitment Order. See Ex. 1 to Gov’t Resp. [Dkt. # 385-1]; see also Def.’s Resp. to Court’s
Order dated June 25, 2020 [Dkt. # 386]. And the Bureau itself is not of the view that another
extension on this basis is warranted. See Def.’s Resp. to Court’s Order dated June 25, 2020 at 2
(“On or about June 10, 2020, government counsel informed undersigned counsel that he had

1 In his pleading, the defendant stated, “[w]hile the BOP website currently does not show
any inmates with the COVID-19 virus at FCI Jesup, it reports that there are 25 tests pending.
https://www.bop.gov/coronavirus/. Given that the BOP does not routinely test inmates,
combined with the relatively high positivity results in BOP facilities, the pending tests do not
bode well.” Def. Mot. at 3–4 (footnotes omitted). But this was pure speculation. The
government explains, “[a]ccording to BOP, all 25 tests referenced in the motion were
administered because those inmates were due to be transferred or released to the community.
Under BOP protocols, quarantine and testing is required before inmates leave the facility. All 25
tests came back negative. As of the close of business yesterday, June 24, 2020 – the most recent
date for which data are available to report today – there have been no confirmed COVID-19
cases among either staff or inmates at FCI Jesup.” Gov’t Resp. at 3, n.1.

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been in contact with BOP and had been informed that BOP was no longer extending surrender
dates based on COVID-19 and that, therefore, BOP would not be changing Stone’s June 30,
2020 surrender date.”).
Moreover, while defendant correctly observes that other courts in this district have
granted extensions in United States v. Benjamin, 18-cr-0121, and United States v. Gana, 19-cr-
305, neither of those defendants was convicted of threatening anyone, and there is no indication
that either failed to abide by conditions of release at any time. By contrast, Mr. Stone was
convicted of threatening a witness, and throughout the course of these criminal proceedings, the
Court has been forced to address his repeated attempts to intimidate, and to stoke potentially
violent sentiment against, an array of participants in the case, including individuals involved in
the investigation, the jurors, and the Court. See Gov’t Resp. at 5 (recounting defendant’s
“attempt to incite violence upon a federal judge, . . . his abuse of social media and other media
outlets to intimidate individuals and witnesses involved in this case, . . . his patently false
statements at the February 21, 2019, show cause hearing, . . . and . . . his now final conviction for
witness tampering, including threats of physical harm to a witness”).
It is true, as the government points out, that at the time of sentencing, the Court was
aware of these circumstances, and it permitted the defendant to voluntarily surrender over the
prosecutor’s objection. But as of February 20, the defendant had not yet been designated to an
appropriate minimum-security federal facility, and remanding him at that time would have
required his incarceration at a local jail approximately 1,000 miles from his home and family
until the designation was accomplished. Also, there was already a motion for new trial pending,
flight was not a factor, and it is fair to say that no one was contemplating that approving
voluntary surrender could lead to a possible six-month delay in reporting.
For all of these reasons, the Court will grant the motion in part, and it is hereby
ORDERED that the defendant’s date to surrender to the Bureau of Prisons will be extended for
another fourteen days, until July 14, 2020. This affords the defendant seventy-five days beyond
his original report date. It is FURTHER ORDERED that during that time, defendant’s
conditions of release will be modified to include the condition of home confinement in
accordance with the Attorney General’s memorandum and the strong medical recommendation
submitted to the Court by the defense that he “maintain strict quarantine conditions.” Letter

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at 1. 2 Pretrial Services may monitor his compliance through any appropriate electronic or non-
electronic means selected in its discretion in accordance with its current practices, which may
include such methods as SmartLINK or Voice Recognition. This will address the defendant’s
stated medical concerns during the current increase of reported cases in Florida, and Broward
County in particular, and it will respect and protect the health of other inmates who share
defendant’s anxiety over the potential introduction and spread of the virus at this now-unaffected
facility.
SO ORDERED.

AMY BERMAN JACKSON

United States District Judge

DATE: June 26, 2020

2 The letter from defendant’s internist stated:

I highly recommend that he maintain strict quarantine conditions. . . . . He
should not be in any situations that would expose him to the SARS-
COV-2 virus. He needs to maintain at least 6 feet distance from people.
He should avoid closed quarters with many people. He must completely
avoid exposure to people with high rates of infections.
Letter at 1. Defendant’s response to the Court’s inquiry concerning his personal preventive
practices and avoidance of public gatherings in accordance with these directives was vague,
carefully parsed, and not reassuring. Def.’s Resp. to Court’s Sealed Order Dated June 24, 2020
[Dkt. # 387] (Sealed) at 1 (Stone has spent “the overwhelming majority” of his time at his home;
he wears a mask “in the appropriate situations;” he avoids closed quarters with “numerous”
people for “extended” durations; he has “on at least one occasion” attended a gathering at which
more than ten people were present; and he has been present in public places such as restaurants
“as local regulations have permitted.”).

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