27085842.1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

YANJUN XU,

a/k/a Xu Yanjun,

a/k/a Qu Hui,

a/k/a Zhang Hui,

Defendant.

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Case No. 1:18-cr-00043

Judge Timothy S. Black

MOTION FOR TRANSFER OF

PRETRIAL DETAINEE UNDER

COURT SUPERVISION

(ORAL ARGUMENT REQUESTED)

(FILED UNDER SEAL)

Pursuant to the Court’s supervisory authority under 18 U.S.C. §§ 3141, 3142 and 3145

and its inherent authority to manage the criminal cases pending before it, Defendant Yanjun Xu

(“Defendant”), by and through counsel, hereby moves the Court for an Order transferring him

from FCI Milan to a detention facility located in the vicinity of Cincinnati, Ohio (preferably

FMC Lexington) that is not experiencing outbreaks of Covid-19.

In light of the severe outbreaks of Covid-19 in the Detroit, Michigan area and at FCI

Milan specifically, Defendant’s transfer out of FCI Milan and the State of Michigan is necessary

to protect his ongoing health and ensure that he has adequate access to counsel in the coming

months to prepare for his January 2021 trial.

WHEREFORE, Defendant respectfully requests that the Court grant this Motion and

order the U.S. Marshal’s Service to immediately transfer Defendant to a detention facility

located in the vicinity of Cincinnati that can more effectively ensure his health and safety.

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Respectfully submitted,

/s/ Ralph W. Kohnen

Ralph W. Kohnen (0034418)

Jeanne M. Cors (0070660)

Robert K. McBride (pro hac vice)

Taft Stettinius & Hollister LLP

425 Walnut Street, Suite 1800

Cincinnati, Ohio 45202-3957

Telephone: (513) 381-2838

Fax: (513) 381-0205

kohnen@taftlaw.com

cors@taftlaw.com

rmcbride@taftlaw.com

COUNSEL FOR DEFENDANT

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27085842.1

CERTIFICATE OF SERVICE

I hereby certify that on April 22, 2020 a copy of the foregoing was filed electronically.

Notice of this filing will be sent to all parties in this case by operation of the Court’s CM/ECF

system. Parties may access this filing through the Court’s system.

/s/ Ralph W. Kohnen

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27086030.1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

YANJUN XU,

a/k/a Xu Yanjun,

a/k/a Qu Hui,

a/k/a Zhang Hui,

Defendant.

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Case No. 1:18-cr-00043

Judge Timothy S. Black

MEMORANDUM IN SUPPORT OF

MOTION FOR TRANSFER OF

PRETRIAL DETAINEE UNDER

COURT SUPERVISION

(FILED UNDER SEAL)

FCI Milan and Southern Michigan in general are experiencing some of the worst

outbreaks of Covid-19 in the country.1 Efforts to contain the spread of the virus at FCI Milan

have failed and the number of positive cases among inmates continues to increase at an alarming

rate. On April 19, 2020, BOP reported 23 inmates and 34 staff at FCI Milan had tested positive

for Covid-19, placing FCI Milan within the top 10 worst outbreaks within the BOP system. As

of April 21, 2020, the number of positive cases among inmates at FCI Milan nearly doubled to

39 and the number of staff testing positive increased to 42.2

1 As of April 21, 2020, Michigan reported the fourth highest total number of COVID-19 cases among the 50 states

(32,967). See https://www michigan.gov/coronavirus/0,9753,7-406-98163 98173---,00 html. The greatest number

of reported cases are concentrated in the Southern portion of the state in the Detroit metro area and surrounding

counties, including: Wayne (14,255 cases and 1,278 deaths (including Detroit)), Oakland (6,306 cases and 506

deaths), Genesee (1,298 cases and 131 deaths), and Macomb (4,544 cases and 445 deaths). See

https://www.michigan.gov/coronavirus/0,9753,7-406-98163 98173---,00 html and

https://www.bridgemi.com/michigan-coronavirus-dashboard-cases-deaths-and-maps. Milan, Michigan is located in

Washtenaw and Monroe Counties which abut Wayne, Oakland, and Genesee Counties. As of April 21, 2020,

Washtenaw County where FCI Milan is located reported 900 confirmed cases and 38 deaths; Monroe County

reported 241 confirmed cases and 10 deaths. Id.

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 The most current statistical information by BOP facility may be found at https://www.bop.gov/coronavirus/.

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ARGUMENT

1. This Court has direct supervision over Mr. Xu and may take all steps necessary

to protect his health and safety.

Pursuant to 18 U.S.C. § 3142 and this Court’s Order of Detention dated October 12, 2018

(Doc. 21), Mr. Xu was detained pretrial and placed under the supervision and care of the U.S.

Marshal’s Service. The Marshal’s Service in consultation with the Bureau of Prisons ultimately

decided to house Mr. Xu in the Special Housing Unit at FCI Milan.

Pretrial detainees, even when housed in a BOP facility, hold a legal status separate and

distinct from general inmates. Unlike inmates who have been convicted of a crime, pretrial

detainees have not been convicted of a crime, are presumed innocent and may not be subjected to

“punishment” during the term of their pretrial detention. The special status afforded pretrial

detainees is reflected in the federal detainer statute, which specifically provides that a pretrial

detainee who is committed to the custody of the Marshal’s Service for confinement in a

corrections facility be held “separate” from inmates awaiting or serving sentences. See 18 U.S.C.

§ 3142(i)(2); see also Legal Resource Guide to the Bureau of Prisons 2019 (“To the extent

practicable, pretrial inmates in BOP facilities are separated from sentenced inmates, in

accordance with 18 U.S.C. § 3142(i)(2).”).

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As a pretrial detainee detained pursuant to this Court’s Order, Mr. Xu remains under the

direct supervision and care of the presiding District Court Judge and the Court. The Court’s

continuing supervisory authority over Mr. Xu and his conditions of detention derive both from

the Court’s inherent authority to ensure that Mr. Xu’s constitutional rights are protected,

including those rights guaranteed by the Sixth, Eighth and Fourteenth Amendments, and the

express statutory provisions set forth in 18 U.S.C. § 3141, et seq. See, e.g., United States v.

Wallen, 177 F. Supp. 2d 455, 458–59 (D. Md. 2001) (recognizing the authority of the presiding

judge to enter orders necessary to protect persons detained by its authority); 18 U.S.C. §

3142(f)(2) (granting presiding judge authority to reopen detention hearing); 18 U.S.C. §

3142(i)(3) (granting presiding judge authority to ensure that the detainee is afforded reasonable

opportunity for private consultation with counsel); 18 U.S.C. § 3145(b) (expressly authorizing a

detainee to file a motion to modify an order of detention and directing that the motion “shall” be

determined promptly).

Pursuant to the Court’s continuing authority to supervise Mr. Xu and his care, this Court

may take all necessary actions, up to and including an order for release or transfer, to remove

him from an unsafe environment and ensure that his constitutional rights are protected. See, e.g.,

United States v. Williams, No. 3:09-00090, 2009 WL 4824940, *2 (M.D. Tenn. Oct. 26, 2009)

(“[T]he Court has the authority under the Bail Reform Act, 18 U.S.C. § 3141, et seq. to make

decisions regarding the detention or release of individuals awaiting trial....”); United States v.

Wallen, 177 F. Supp. 2d at 458–59.

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3

 Given the extraordinary and urgent threat posed by the Covid-19 epidemic, many federal courts have recently held

that, even where applicable, administrative exhaustion requirements are appropriately waived as futile. See, e.g.,

United States v. McCarthy, Nos. 3:17-CR-0230 (JCH), 3:92-CR-0070 (JCH), 2020 WL 1698732, *4 (D. Conn. Apr.

8, 2020) (excusing exhaustion requirement because “[e]ven a few weeks’ delay carries the risk of catastrophic health

consequences” for prisoner in high risk group); United States v. Zukerman, No. 16 CR. 194 (AT), 2020 WL

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The defendant in Williams moved the court for an order transferring him out of a county

facility that he alleged provided inadequate nutrition, medical care and hygiene. In ordering the

defendant’s transfer to protect his health and safety, the court relied on its authority under the

Bail Reform Act. Williams, 2009 WL 4824940 at *2 citing 18 U.S.C. § 3141, et seq. In its

decision, the court also referenced its prior order in which it flatly rejected the government’s

contention that the defendant’s conditions of confinement were not relevant in the criminal case.

As for the Government’s next contention, the Court finds that the conditions of

the Defendant’s confinement are relevant in this criminal case because those

conditions can impede his ability to assist in his defense. The conditions can also

affect his ability to make a knowing, intelligent and voluntary decision to go to

trial or enter a guilty plea. ... Finally, the Court has the inherent power to

supervise the conditions of the pretrial detention it has ordered.

Williams, No. 3:09-00090 (M.D. Tenn.) Order dated Sept. 4, 2009, Dkt. No. 52, at p. 2 (decision

regarding the Motion of the United States to Limit Scope of Evidentiary Hearing and Require

Defendant to Allege Specific Claims and Injuries and State Requests for Relief (Dkt. No. 25)).

Similarly in Wallen, the court ordered the U.S. Marshal’s Service to transfer the

defendant out of the facility where he was being housed due to inadequate medical care. In so

ordering, the court noted that while under normal circumstances it is for the Marshal to

determine the place of detention, the presiding District Court Judge has the inherent authority to

enter orders necessary to protect persons detained by his/her authority from potentially lifethreatening conditions. Wallen, 177 F. Supp. 2d at 456 n. 2, 459.

2. Mr. Xu’s continued detention at FCI Milan constitutes an immediate threat to

his health and safety.

1659880, *4 (S.D.N.Y. Apr. 3, 2020) (waiving exhaustion requirement, given defendant’s advanced age, health

conditions putting him in a high risk group for complications and death resulting from COVID-19, and fact that he

was in a detention facility where prisoners live in crowded conditions).

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There are many BOP facilities, including FMC Lexington, that are not experiencing

Covid-19 outbreaks of the magnitude and scale being experienced at FCI Milan. Transfer to a

facility such as FMC Lexington would both minimize Mr. Xu’s risk

3. Mr. Xu’s transfer is also necessary to ensure that he has adequate access to

counsel to prepare for trial.

This Court’s continuing authority to issue and/or modify orders to protect Mr. Xu’s Sixth

Amendment right to counsel is expressly provided for in the statute pursuant to which he is being

detained. See 18 U.S.C. § 3142(i)(3).

As counsel has previously advised the Court, Mr. Xu’s detention in the SHU at FCI

Milan – an 8-hour round trip from Cincinnati, and the very limited access counsel has been given

to Mr. Xu - has made it difficult for counsel to obtain the time with Mr. Xu necessary to prepare

his defense. The Covid-19 outbreak at FCI Milan have brought all

legal visits and consultations to a grinding halt, placing at risk Mr. Xu’s Sixth Amendment right

to counsel. 

With a trial date of January 2021 fast approaching, counsel will need frequent access to

Mr. Xu to prepare for trial. Given the ongoing and growing Covid-19 crisis at FCI Milan and in

Southern Michigan generally, 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. Mr.

Xu’s transfer to a BOP facility free of Covid-19 thus has the additional benefit of helping to

ensure that Mr. Xu will have adequate access to counsel to prepare his defense and for trial.

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27086030.1

Respectfully submitted,

/s/ Ralph W. Kohnen

Ralph W. Kohnen (0034418)

Jeanne M. Cors (0070660)

Robert K. McBride (pro hac vice)

Taft Stettinius & Hollister LLP

425 Walnut Street, Suite 1800

Cincinnati, Ohio 45202-3957

Telephone: (513) 381-2838

Fax: (513) 381-0205

kohnen@taftlaw.com

cors@taftlaw.com

rmcbride@taftlaw.com

COUNSEL FOR DEFENDANT

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27086030.1

CERTIFICATE OF SERVICE

I hereby certify that on April 22, 2020 a copy of the foregoing was filed electronically.

Notice of this filing will be sent to all parties in this case by operation of the Court’s CM/ECF

system. Parties may access this filing through the Court’s system.

/s/ Ralph W. Kohnen

Case: 1:18-cr-00043-TSB Doc #: 94 Filed: 04/30/20 Page: 11 of 11 PAGEID #: 969