Prosecutor, defense ask to delay prison for LR fraud convict

A federal prosecutor on Monday joined a defense attorney’s request to allow a Little Rock man to delay reporting to federal prison for helping defraud people of hundreds of thousands of dollars, citing outbreaks of covid-19 at prisons across the country, including in Forrest City.

An initial request filed Friday by attorney Darrell Brown Jr. on behalf of John Alexander McLean noted that the prosecutor didn’t object, but nevertheless, the motion was quickly denied without explanation by U.S. District Judge James Moody Jr.

On March 19, Moody sentenced McLean, 59, to 21 months in federal prison for his guilty plea to a wire-fraud charge in which he admitted helping former sports memorabilia collector John Rogers of North Little Rock sell everyday items as valuable collectibles. Moody ordered McLean to report by 2 p.m. April 8 to whatever facility the U.S. Bureau of Prisons designates for him.

Brown’s original motion cited “the current pandemic and the need to limit travel,” as well as health concerns for

McLean or others at whichever facility is designated, noting, “it has become more apparent that covid-19 has begun to rise or at least arise” in federal prisons, including the one in Forrest City.

On Saturday, the Arkansas Democrat-Gazette reported that two inmates and an employee at the Forrest City prison, the state’s only federal prison, had tested positive for the novel coronavirus that causes covid-19. By Sunday, officials said that 10 inmates had tested positive and at least 15 to 20 more had exhibited symptoms, and that four staff members at the prison had tested positive, with another 10 to 15 employees having had “significant exposures.”

On Monday afternoon, the Forrest City prison complex reported that one more inmate, but no more staff members, had tested positive. No state prisons have yet reported any confirmed cases of the coronavirus

Earlier Monday, Brown tried again to get McLean’s prison report date extended, this time in a motion joined by Assistant U.S. Attorney Cameron McCree. Brown said later that he didn’t yet know where McLean will be ordered to report, but that he doesn’t think it will be Forrest City, for “other reasons.”

The motion cited the U.S. Justice Department’s position on admitting new inmates.

“In order to reduce and minimize the potential introduction and spread of covid-19 in federal prisons, the United States recently received guidance from the Department of Justice directing Assistant United States Attorneys not to oppose or object to a request by a defendant, who has been sentenced and permitted to self-report to a [Bureau of Prisons] facility, to extend his/her reporting date for a period of 60 days, if the defendant is not in custody and does not otherwise pose a risk or flight or danger to the community, “the joint motion said, adding, “The parties agree that Mr. McLean fits that criteria.”

No ruling had been issued by Monday evening.

Meanwhile, covid-19 is increasingly being cited in motions filed in the Eastern District of Arkansas by attorneys seeking release from pretrial custody or release from prison.

On Sunday, attorney Omar Greene of Little Rock filed a motion for compassionate release on behalf of Robert Bowers Jr., a Pocahontas man convicted in the Eastern District of Arkansas of possessing child pornography. In 2019, he began serving a five-year sentence at a federal prison in Butner, N.C., where 10 confirmed inmate cases had been reported by Sunday, and where 53 prisoner cases were reported by Monday afternoon.

Greene said that Bowers, who is undergoing dialysis for kidney failure, “faces a steeply heightened risk of serious illness or death from” covid-19.

Greene attached Bowers’ medical records that show, before his incarcertaion, he was being treated for congestive heart failure, chronic obstructive pulmonary disease, laryngeal carcinoma, Crohn’s disease, Type 2 diabetes and a gastric pacemaker that hasn’t been checked in some time, among many other conditions.

The motion noted that a federal judge in Texas ordered another inmate’s compassionate release on March 30, after considering the prisoner’s medical issues and the presence of covid-19 at the North Carolina prison. It also noted that a federal judge in Pennsylvania on March 31 ordered the immediate release of prisoners detained by Immigration and Customs Enforcement, noting that the detainees suffered “from medical conditions creating an imminent risk of death or serious injury if exposed to covid-19.”

The motion said Bowers would live with his mother in Pocahontas if released. Federal prosecutors didn’t respond by late afternoon Monday to the motion pending before U.S. District Judge Brian Miller.

On Thursday, U.S. Magistrate Judge Jerome Kearney denied another request of Greene’s, this one seeking the pre-trial release of Tyrone Vincent Lunnie, who is in federal custody in the Greene County Jail in Paragould.

Greene argued that Lunnie, who is facing trial on drug and gun charges, faced a “lethal threat” from potential exposure to covid-19 while jailed because he is 48 and has a history of underlying health problems — bronchitis, high blood pressure and gastrointestinal problems stemming from a gunshot wound in his abdomen.

Kearney wrote, “The court is sympathetic to his concerns, but Mr. Lunnie is not alone. Covid-19 presents serious ongoing concerns for millions of people, especially those with certain underlying medical conditions.” But, he said, Lunnie hasn’t shown a sufficiently compelling reason for his release, “particularly in light of the Court’s prior finding that he is a flight risk and danger to the community. … He has not even made a threshold showing that his proposed release would necessarily better address his health concerns than if he was to remain in custody. Furthermore, his proposed release plan would likely increase the risk of harm to others.”

Kearney cited a March 25 ruling by a federal judge in Kansas that included “an excellent analysis of recent cases around the country” where judges are addressing release requests due to the pandemic. Kearney said that in United States v. Clark, the Kansas judge conducted an in-depth study of the myriad ways courts are dealing with the pandemic, ultimately declaring that each request must be decided on a caseby-case basis.

He also noted that there were no known covid-19 cases at the Greene County Jail, which is reportedly taking “meaningful measures” to protect its inmates, staff and visitors from an outbreak. And Kearney cited the potential danger Lunnie’s release could create for law enforcement officers and pretrial release officers who would come into contact with any non-complying released prisoners.

Assistant U.S. Attorney Benecia Moore cited Kearney’s ruling in opposing another request of Greene’s seeking release from pretrial detention for another drug defendant now staying at a facility in Mason, Tenn. The motion cited “the ideal environment for the spread of a highly contagious disease like covid-19,” but Moore said the warden told federal marshals there were no reported cases at the facility, which is taking detailed measures to protect the inmate population.

The motion is pending before Chief U.S. District Judge D. Price Marshall Jr.

Also Monday, U.S. Magistrate Judge Beth Deere denied a request from attorney Sonia Fonticiella of the federal public defender’s office seeking the release of Paris Riley, 44, who is being housed in the Dallas County Jail in Fordyce awaiting trial on federal drug charges. Fonticiella wrote that Riley suffers from pulmonary embolisms, high blood pressure and is borderline diabetic.

Deere cited an email that prosecutors attached from the jail showing no indications of the virus in the jail or in the county, as well as Riley’s “significant criminal history.”