IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

UNITED STATES OF AMERICA : Case No. 1:18-CR-0043 

: 

v. : Judge Timothy S. Black 

: 

YANJUN XU : UNITED STATES’ MEMORANDUM 

(a/k/a Xu Yanjun and Qu Hui) : IN RESPONSE TO DEFENDANT’S

: MOTION FOR A PRISON TRANSFER 

: 

 

Counsel for Defendant Yanjun Xu has filed a motion seeking a transfer to a different 

prison facility for his pretrial detention. In short, defense counsel seeks an order from this Court 

that commands, in the midst of the COVID-19 pandemic, the U.S. Marshal’s Service (“USMS”) 

and Bureau of Prisons (“BOP”) to transfer a detainee to a 

different BOP facility that has no COVID-19 cases. The government opposes the motion, as 

such a transfer is directly contrary to efforts being made by the BOP to mitigate this health crisis

and there is no basis for a court-ordered transfer to another facility. 

A. The Current Status 

 

 

 

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B. Any Prison Transfer In A Pandemic Creates Undue Health Risks. 

 Any transfer of a detainee creates risks. 

 Defense counsel focuses entirely on Defendant Xu’s circumstances, as is their 

prerogative. But the motion for transfer completely ignores the potential risk that a transfer 

creates for the inmates and staff in the receiving facility. Given the difficulty in controlling the 

spread of such a virus within a facility, it is of paramount importance that non-infected facilities 

be able to stay that way. Accordingly, all of the BOP prison facilities have enforced strict rules 

to prevent the introduction of the virus into a facility, including screening procedures for staff 

members and prohibiting visits by family and attorneys. In short, BOP is trying to limit the 

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spread of the virus in institutions where inmates and/or staff have tested positive, and reduce the 

risk that the virus will be introduced into facilities with no reported cases of the virus. 

 The defense motion completely ignores the fact that transferring Defendant Xu into a new 

facility creates an unknown risk for the hundreds of individuals at that new facility. The motion 

also suggests a transfer to the FCI Lexington medical facility, which already houses individuals 

with underlying health conditions (aside from the virus concern). Again, this ignores the risk that 

such a transfer creates for those inmates and staff at the receiving facility.

 Due to those risks under the present conditions, any movement of Defendant Xu would 

require a period of quarantine at a separate location before allowing him to be introduced to a 

new facility. Not only would this period of quarantine necessitate arrangements for such a 

separate accommodation, it also would create additional health risks in the form of possible 

exposure to the virus for the transporting staff and/or guards, and those caring for Defendant Xu 

in the quarantine location. 

 

 

 

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C. A Transfer Does Not Change the Access to Counsel Issue.

The COVID-19 pandemic has led to limitations on visits between counsel and detainees 

nationwide. Phone calls with counsel are permitted, but in-person visits are currently prohibited. 

This restriction is not limited to FCI Milan or BOP facilities with positive cases. All BOP 

facilities are restricting in-person attorney visits to cope with the health and safety concerns. The 

same is true in local facilities as well, as Butler County Jail and Boone County Jail have also 

restricted in-person meetings between inmates and counsel. 

The defense team’s concerns about this restriction are understandable. The government 

acknowledges that this restriction may impact the trial calendar, depending on the trial 

preparation that the defense team is able to conduct. However, a transfer to another facility will 

not resolve the issue. As noted, all facilities are implementing such visit restrictions to protect 

the health of staff and detainees. 

Defense counsel claims that “it is safe to assume that the lockdowns and restricted 

visitation protocols at other detention facilities may be lifted before it is safe to do so at FCI 

Milan.” (PAGEID 939.) The government does not share that assumption. Indeed, the opposite 

may occur. The FCI Milan facility may be further along the trajectory of addressing and coping 

with an outbreak. But if Defendant Xu is transferred to a different “non-infected” facility, that 

facility may endure its own outbreak in a few months, and this cycle may be repeated.

The broader point is that there is much we simply do not know. For the time being, 

defense counsel (in this case and elsewhere) will need to adapt to the use of written 

correspondence, phone calls, or video conferencing as available to confer with clients. A blanket 

order of transfer will not provide Defendant Xu with immediate access to in-person attorney 

visits, nor will it guarantee such access in the near future.

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Even if a transfer were ordered, there is no guarantee that the new designation would be 

closer or more convenient for counsel. There are security issues with respect to Defendant Xu 

that must be considered as well. Local facilities are not always equipped or willing to accept a

detainee that requires such security protocols. Therefore, there is the possibility that an order to 

transfer would lead to Defendant Xu being housed even further from Cincinnati. 

D. The Statutory Authority to Determine Housing Decisions. 

The defense argues that the Court has the authority to order a facility transfer for a 

pretrial detainee pursuant to the authority in Title 18, U.S. Code, Section 3142. Section 3142 sets 

forth the parameters for district courts to decide if a defendant is detained pending trial, or 

released pursuant to certain conditions. However, the statute says nothing about a Court’s 

authority to designate the specific facility in which a person is detained. 

Section 3142(i) only states that the detention commit the person to the Attorney General 

for confinement in a corrections facility separate, to the extent practicable, from persons awaiting 

or serving sentences or being held in custody pending appeal. The Section 3142(i) order of 

detention must direct that the person be afforded reasonable opportunity for private consultation 

with counsel; and direct that the defendant be delivered to court for court proceedings as 

required. 18 U.S.C.A. § 3142. But, the statute is silent as to the facility designation or location. 

See, Falcon v. U.S. Bureau of Prisons, 852 F. Supp. 1413, 1417 (S.D. Ill. 1994), aff'd, 52 F.3d 

137 (7th Cir. 1995) (the statute does not require a pre-trial detainee to be housed within the trial 

district, or even within the trial state).

Title 18 and its accompanying regulations make clear that the responsibility for the safekeeping of such pretrial detainees has been delegated by Congress to the Attorney General within 

the Executive Branch of the government. Section 3142(i) states that the court may commit the 

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defendant to the custody of the Attorney General. Likewise, 18 U.S.C. § 4086 provides that the 

Attorney General, “shall provide for the safe-keeping of any person arrested, or held under 

authority of any enactment of Congress pending commitment to an institution.” 

The Attorney General has delegated that responsibility to the United States Marshal

Service which, in turn, has agreements with state and local facilities and contracts with private 

entities for the safekeeping, care, and subsistence of prisoners. 18 U.S.C. §§ 4002, 4013. The 

Attorney General has further delegated to the United States Marshal the authority for the 

“acquisition of adequate and suitable detention space, health care and other services and 

materials required to support prisoners under the custody of the U.S. Marshal who are not housed 

in Federal facilities.” 28 C.F.R. § 0.111(o). Under 28 C.F.R. § 0.111(k), the Director of the 

United States Marshal Service has broad authority for the “[s]ustention of custody of Federal 

prisoners from the time of their arrest by a marshal or their remand to a marshal by the court, 

until the prisoner is committed by order of the court to the custody of the Attorney General for 

the service of sentence.” Id.

28 C.F.R. “[§] 0.111(o) gives the Marshals Service absolute discretion with regard to the 

housing of prisoners.” Valdez v. U.S. Marshal Serv., No. 6:13-cv-2376, 2014 WL 4103204, at *4 

& n.5 (W.D. La. Aug. 13, 2014) (determining that “[t]he USMS's decision with regard to [the] 

plaintiff's placement . . . is protected by the discretionary function exception since the 

determination of where to house a prisoner is discretionary,” given that § 0.111(o) “clearly 

requires that the Director of the Marshals Service exercise his judgment when selecting which 

non-federal facilities will house federal prisoners”).

Courts have recognized that these statutes and regulations provide the United States 

Marshal Service with broad authority to determine where to house its prisoners. Saunders v. 

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United States, 502 F.Supp.2d 493, 496 (E.D.Va. 2007) (“This open-ended authority recognizes 

the Marshals Service's need to ‘weigh concerns of expense, administration, payment, access to 

the premises, and the veritable plethora of factors' ” relative to placement)(quoting Williams v. 

United States, 50 F.3d 299, 310 (4th Cir.1995); Falcon v. Bureau of Prisons, 852 F. Supp. 1413, 

1420 (S.D. Ill. 1994) (Attorney General has discretion to select “appropriate forum for the 

pretrial detention of a defendant awaiting trial.”), aff’d. 52 F.3d 137 (7th Cir. 1995); Lyons v. 

Clark, 694 F. Supp. 184, 186–87 (E.D. Va. 1988) (rejecting complaint regarding a transfer, 

stating authority to determine place of detention lies within “broad discretion” of the Attorney 

General).

In United States v. Stile, No. 1:11-CR-00185-JAW, 2013 WL 12195872, at *1 (D. Me. 

Nov. 27, 2013), the district court rejected such a request for transfer, noting that the authority for 

housing decisions rests with the Attorney General and USMS. The court stated that the “law is 

clear that ‘[a] pre-trial detainee does not have the right to be housed at the facility of his choice, 

nor does he have the right to remain in the institution to which he was initially, or even at one 

time, assigned’.” Id., quoting Falcon, 852 F. Supp. at 1420; see also, Espinoza-Arevalo, No. 14-

00332-02-CR-W-BP, 2015 WL 9598299, at *3 (W.D. Mo. Dec. 30, 2015) (denying motion to 

transfer to a facility with an interpreter).

Facility assignments necessarily implicate the “balancing of competing policy 

considerations, such as the inmate's personal safety and medical needs, the facility's available 

resources, the safety and medical needs of other prisoners, the security and medical staff, and the 

public.” Harper v. United States, No. 5:08-CV-403-KKC, 2009 WL 3190377, at *4 (E.D. Ky. 

Sept. 30, 2009) (concluding that “[s]uch considerations unquestionably fall within the 

discretionary function exception,” noting that “numerous courts have properly held that such 

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decisions cannot be subjected to review in a tort action under the FTCA” (citations omitted) ); 

see Valdez, 2014 WL 4103204, at *4 n.5 (reasoning that C.F.R. § 0.111(o) does not limit or 

guide the selection of a facility in any way so long as the space is adequate, suitable, and meets 

minimum compliance criteria); Cole v. United States, No. 115CV01105JDBCGC, 2018 WL 

3717192, at *13 (W.D. Tenn. Aug. 3, 2018).

The Supreme Court has implicitly acknowledged that this broad discretion extends to 

transferring federal prisoners to any facility within the federal system. Lyons v. Clark, 694 F. 

Supp. 184, 186–87 (E.D. Va. 1988), aff'd, 887 F.2d 1080 (4th Cir. 1989), citing, Carlson v. 

Green, 446 U.S. 14, 24–25 n. 11, 100 S.Ct. 1468, 1474–1475 n. 11, 64 L.Ed.2d 15 (1980) 

(dictum ). In the words of the Seventh Circuit, the Bureau of Prisons “has the discretion to 

transfer federal prisoners from one place of confinement to another at any time for any reason 

whatsoever or for no reason at all.” Brown–Bey v. United States, 720 F.2d 467, 470 (7th Cir.

1983) (citations omitted); see also Goodman v. Keohane, 663 F.2d 1044, 1047 (11th Cir. 1981) 

(per curiam).

Thus, the discretion to determining the housing facility for a detainee is vested with the 

Attorney General and USMS by statute and regulation. 

E. Absent Constitutional Violations, Federal Courts Should Defer To The Housing 

Decisions of USMS and BOP.

The federal courts have consistently shown deference towards prison management

determinations. As the Supreme Court admonished in Procunier v. Martinez, 416 U.S. 396, 405 

(1974), “courts are ill equipped to deal with the increasingly urgent problems of prison

administration” and that it would not be wise for a court to second-guess the expert 

administrators on matters on which they are better informed. See Bell v. Wolfish, 441 U.S. 520, 

531, 99 S. Ct. 1861, 1872, 60 L. Ed. 2d 447 (1979). Thus, federal courts “ought to afford 

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appropriate deference and flexibility to [jail] officials trying to manage a volatile environment.” 

Sandin v. Conner, 515 U.S. 472, 482 (1995) (citing Wolff v. McDonnell, 418 U.S. 539, 561–563 

(1974)); see also, United States v. Espinoza-Arevalo, No. 14-00332-02-CR-W-BP, 2015 WL 

9598299, at *1 (W.D. Mo. Dec. 30, 2015).

In Bell, the Supreme Court expressed deference towards prison measures and cautioned 

against relying on “a court's idea of how best to operate a detention facility.” Bell, 441 U.S. at

539. The Court in Bell stated: “[I]n addition to ensuring the detainees' presence at trial, the 

effective management of the detention facility once the individual is confined is a valid objective 

that may justify imposition of conditions and restrictions of pretrial detention and dispel any 

inference that such restrictions are intended as punishment.” Bell, 441 U.S. at 540. 

Therefore, the Supreme Court held that it only considers the constitutionality of 

conditions of pretrial detention under a due process analysis, with the inquiry dependent on

whether conditions amount to “punishment” of the detainee. Bell, 441 U.S. at 535. There is no

Fifth Amendment right to challenge the housing decision absent a determination that his 

detention rises to the level of punishment. In re Gee, 815 F.2d 41 (7th Cir.1987); Garza v. 

Miller, 688 F.2d 480 (7th Cir.1982), cert. denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 

(1983); Falcon v. Knowles, 807 F.Supp. 1531, 1533 (S.D. Fla. 1992) (rejecting Falcon's similar 

petition for emergency relief brought when Falcon was moved to FCI–Talladega, Alabama); 

Falcon v. U.S. Bureau of Prisons, 852 F. Supp. 1413, 1420 (S.D. Ill. 1994), aff'd, 52 F.3d 137 

(7th Cir. 1995).

In addition, such constitutional challenges are typically brought in a separate action, after 

administrative remedies have been exhausted. An instructive case is Falcon v. U.S. Bureau of 

Prisons, 852 F. Supp. 1413, 1423 (S.D. Ill. 1994), aff'd, 52 F.3d 137 (7th Cir. 1995). In that 

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case, the defendant claimed that his detention at USP–Marion, required his counsel to travel from 

Miami, Florida in order to meet face-to-face, and unconstitutionally infringed upon his right to 

effective assistance of counsel. Falcon, 52 F.3d at 138. The court noted petitioner must rely 

upon a writ for change in the level of confinement, but anything else requires a civil rights action. 

Falcon, 52 F.3d at 139 (7th Cir. 1995). Even if it were construed as a Bivens cause of action, the 

person must exhaust any administrative remedies, if available. Falcon, 52 F.3d at 139.

The defense references only two cases for the proposition that a district court has 

authority to order a transfer to remove an inmate, citing United States v. Williams, No. 3:09-

00090, 2009 WL 4824940, *2 (M.D. Tenn. Oct. 26, 2009) and United States v. Wallen, 177 F. 

Supp. 2d 455, 458–59 (D.Md. 2001). In Williams, the district court ordered a transfer due to the 

facility’s failure to provide a constitutionally-minimal amount of food to detainees. In Wallen, 

the USMS conceded that it could not assure appropriate medical care at the current housing 

facility, so the Court ordered a transfer based on constitutional due process grounds. 177 F. Supp. 

2d at 458. Although the procedure may not have been correct, both cases were premised upon 

conditions that resulted in constitutional violations. 

Absent such constitutional violations, courts have denied requests for transfers and 

deferred to the discretion of the USMS and BOP. See Moyers v. Shudan, No. 3:07-cv-393, 2009 

WL 1813969, at *2 (E.D. Tenn. June 24, 2009) (denying the plaintiff's motion to order the U.S. 

Marshals Service to house him in a different facility and noting that the “housing of federal 

prisoners pending court proceedings is within the discretion of the U.S. Marshals Service and this 

Court will not interfere with that discretion, absent extraordinary circumstances”); see also 

United States v. Espinoza-Arevalo, No. 14-00332-02-CR-W-BP, 2015 WL 9598299, at *3 (W.D. 

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Mo. Dec. 30, 2015) (recognizing that the United States Marshal Service has “broad authority to 

determine where to house it prisoners”). 

Here, Defendant Xu has not presented a claim of a constitutional violation. 

 Given the 

deference required by the law, there is no basis for a court-ordered transfer to another facility. 

F. Within this Pandemic, the Court Should Exercise Even Greater Deference. 

Within the context of this pandemic, the deference mandated by the U.S. Supreme Court 

should carry even greater weight. A single motion to transfer does not impact the conditions of 

one detainee. Rather, the prospect of transferring any single prisoner creates a cascade of health 

consequences and risks for the staff and receiving facility. Given the complexities of trying to 

manage multiple prison populations within a complex pandemic, the courts should defer to the 

judgments of BOP and USMS officials with respect to facility transfers.

Recently, a group of prisoners sued to be released or moved from a facility that was 

experiencing a COVID-19 outbreak. Plata v. Newsom, No. 01-CV-01351-JST, 2020 WL 

1908776, at *10 (N.D. Cal. Apr. 17, 2020). The Court in Plata concluded that it lacked authority 

to require the state to release any inmates or transfer them to non-CDCR institutions. Because 

there was no constitutional violation, the Court found that it was likewise inappropriate to sua 

sponte request the convening of a three-judge court to determine whether a prisoner release or 

reduction order should be entered under 18 U.S.C. § 3626(a)(3)(D). Plata v. Newsom, No. 01-

CV-01351-JST, 2020 WL 1908776, at *11 (N.D. Cal. Apr. 17, 2020). 

The current public health situation is complex and involves many questions from a 

medical and public policy perspective that may take many months to resolve. An order to move 

one detainee may create consequences that extend far beyond a single case. In light of the 

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statutory authority that is delegated to the Attorney General and USMS, and the case law 

requiring deference in the absence of constitutional violations, the Court should deny the 

Defendant’s motion for an order requiring a transfer. 

G. Conclusion.

 For the reasons set forth above, the government requests that the Court deny Defendant 

Yanjun Xu’s motion for a facility transfer. 

Respectfully submitted,

DAVID M. DEVILLERS

United States Attorney

s/Timothy S. Mangan

EMILY GLATFELTER 

TIMOTHY S. MANGAN (0069287)

Assistant United States Attorneys

221 East Fourth Street, Suite 400

Cincinnati, Ohio 45202

Office: (513) 684-3711

Fax: (513) 684-6385

E-mail: timothy.mangan@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been electronically served via the Court’s 

CM/ECF system upon defense counsel, this 27th day of April, 2020.

s/Timothy S. Mangan

TIMOTHY S. MANGAN (0069287)

Assistant United States Attorney

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