27138157.1 

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. 

:

:

:

:

:

:

:

:

:

:

:

:

Case No. 1:18-cr-00043 

Judge Timothy S. Black 

REPLY MEMORANDUM IN SUPPORT 

OF MOTION FOR TRANSFER OF 

PRETRIAL DETAINEE UNDER 

COURT SUPERVISION 

(FILED UNDER SEAL) 

 

The government spends much of its memorandum discussing the statutory and regulatory 

regime established by Congress to delegate to the Attorney General, U.S. Marshals Service and 

Bureau of Prisons (“BOP”) responsibility for the placement and day-to-day care of inmates and 

pretrial detainees. The government argues strenuously that in light of this regime and the 

particularized expertise of these agencies, courts in the normal course should show significant 

deference to decisions made by the U.S. Marshals Service and BOP regarding the placement, 

supervision and care of pretrial detainees. With respect to these propositions, the parties are in 

full agreement. 

Defendant disagrees strongly, however, with the government’s implication that the 

existence of this regime completely divests a presiding District Court Judge of his or her inherent 

authority to address matters relating to pretrial detainees locked up pursuant to his or her Court 

order. To the extent the government is implying a court loses all authority to supervise and care 

for a pretrial detainee once he or she is placed in a detention facility (BOP or otherwise), it has 

failed to cite any case so holding. To the contrary, the government’s own cases recognize the 

Case: 1:18-cr-00043-TSB Doc #: 96 Filed: 04/30/20 Page: 1 of 5 PAGEID #: 982
 

2 

27138157.1 

inherent authority of a District Court Judge to address matters relating to pretrial detainees who 

remain under its supervision and care and, of particular relevance given the current Covid-19 

crisis, acknowledge that court intervention may be appropriate in the face of “special” or 

“extraordinary” circumstances. See, e.g. United States, v. Stile, No. 1:11-cr-00185-JAW, 2013 

WL 12195872, *2 (D. Me. Nov. 27, 2013) (the existence of special circumstances may justify 

court intervention in the discretionary decision-making of the U.S. Marshals Service regarding 

the housing and transport of a pretrial detainee awaiting trial); Moyers v. Shudan, No. 3:07-cv393, 2009 WL 1813969, *2 (E.D. Tenn. June 24, 2009) (normal deference afforded discretionary 

decision-making of the U.S. Marshals Service regarding the housing of federal prisoners may 

give way in the face of “extraordinary circumstances.”); see also Falcon v. U.S. Bureau of 

Prisons, 852 F. Supp. 1413, 1422 (S.D. Ill. 1994), aff’d 52 F.3d 137 (7th Cir. 1995) (noting the 

Sixth Amendment rights of a pretrial detainee are best addressed not in a separate habeas action 

but “in the criminal case”).1

The government does not dispute the nature of the Covid-19 crisis in Southern Michigan 

and at FCI Milan. Nor does the government contest other key factual allegations asserted by 

Defendant in support of his motion, including: 

 FCI Milan’s protocols have failed to halt the spread of the virus throughout the 

facility; 

 

1 Additional cases cited by the government affirm a District Court Judge’s authority to intervene to 

protect the constitutional rights of a pretrial detainee. See, e.g., United States v. Espinoza-Arevalo, No. 

14-00332-02-CR-W-BP, 2015 WL 9598299 (W.D. Mo. Dec. 30, 2015) (recognizing court’s authority to 

act upon a pretrial detainee’s complaints that his constitutional rights were violated by circumstances of 

his confinement by the United States Marshal); Procunier v. Martinez, 416 U.S. 396, 405-06 (1974) 

overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989) (recognizing that prison administrator’s 

discretion is not unlimited and thus “a policy of judicial restraint cannot encompass any failure to take 

cognizance of valid constitutional claims whether arising in a federal or state institution.”); Bell v. 

Wolfish, 441 U.S. 520, 535 (1979) (acknowledging court’s authority to ensure that conditions of detention 

do not amount to punishment of the pretrial detainee).

Case: 1:18-cr-00043-TSB Doc #: 96 Filed: 04/30/20 Page: 2 of 5 PAGEID #: 983
3 

27138157.1 

 ; 



; 



; 



 

 The many obstacles Defense counsel was already encountering in conferring with 

Defendant and preparing for trial – including an 8-hour round trip and restricted 

visitation schedule – have only been exacerbated by the Covid-19 crisis. 

As the cases cited both by Defendant and the government attest, this Court retains its 

inherent authority to intervene in the discretionary decision-making of the U.S. Marshals Service 

and BOP to protect the constitutional rights and health and safety of Defendant – a pretrial 

detainee who is presumed innocent and has been convicted of nothing. Certainly it would be 

difficult to envision a crisis situation more likely to constitute “special” or “extraordinary” 

circumstances warranting court intervention than the Covid-19 epidemic we are experiencing 

currently . 

Defendant and his counsel appreciate fully the myriad and complex factors that go into 

placing and caring for inmates and detainees. 

 By this 

Motion, Defendant is not asking the Court, alone and without consultation, to order Defendant’s 

 

Case: 1:18-cr-00043-TSB Doc #: 96 Filed: 04/30/20 Page: 3 of 5 PAGEID #: 984
4 

27138157.1 

transfer to a particular detention facility. 

 allow for more ready access to counsel as trial 

approaches. 

This case and the threat the Covid-19 pandemic and outbreak at FCI Milan pose to 

Defendant’s health and well-being cannot be overstated. By this Motion, Defendant respectfully 

seeks only that the Court exercise its inherent and statutory authority to look into the 

circumstances and conditions of his detention and, in consultation with the U.S. Marshal’s 

Service and BOP, explore whether there might be an alternative to FCI Milan that may more 

effectively ensure Defendant’s health and well-being and allow for more ready access to counsel 

as they prepare for trial. 

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 

Case: 1:18-cr-00043-TSB Doc #: 96 Filed: 04/30/20 Page: 4 of 5 PAGEID #: 985
 

5 

27138157.1 

CERTIFICATE OF SERVICE 

I hereby certify that on April 29, 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 #: 96 Filed: 04/30/20 Page: 5 of 5 PAGEID #: 986