Statement of Recent Decision CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI

Date: 2021-05-11

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Exhibit A to Document 98-1, filed May 11, 2021 in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, in the U.S. District Court for the Northern District of California: the plaintiff's statement of recent decision under Civil Local Rule 7-3(d)(2). It brings to the Court's attention its own decision in United States v. Lonich, Case No. 17-cr-00139 SI, decided April 28, 2021 and amended on other grounds on May 5, 2021, quoting its observation about the degree and duration of protection vaccines provide. It states the order is relevant to the motions to dismiss then pending before the Court. The attached copy of that order grants a defendant's renewed motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) and, alternatively, states under Federal Rule of Criminal Procedure 37(a) that the court would grant the motion on remand.

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Case 3:20-cv-05787-SI Document 98-1 Filed 05/11/21 Page 1 of 9

EXHIBIT A
Case 3:20-cv-05787-SI Document 98-1 Filed 05/11/21 Page 2 of 9

1 ROGER I. TEICH
California State Bar No. 147076
2 290 Nevada Street
San Francisco, CA 94110
3 Telephone: (415) 948-0045
E-Mail Address: rteich@juno.com
4
ROBERT F. KENNEDY, JR.
5 MARY HOLLAND
Children’s Health Defense
6 1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
7 Telephone: (917) 743-3868
E-Mail Address: mary.holland@childrenshealthdefense.org
8
Attorneys for Plaintiff
9 CHILDREN’S HEALTH DEFENSE

10 UNITED STATES DISTRICT COURT

11 NORTHERN DISTRICT OF CALIFORNIA

12 SAN FRANCISCO DIVISION

13
CHILDREN’S HEALTH DEFENSE,
14
Plaintiff,
15 Case No. 3:20-cv-05787-SI
v.
16 PLAINTIFF’S STATEMENT OF
RECENT DECISION
17 FACEBOOK, INC., et al.,

18 Defendants.
19
20

26
27

28
1
Plaintiff’s Request for Leave to File
Statement of Recent Decision
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 98-1 Filed 05/11/21 Page 3 of 9

1 STATEMENT OF RECENT DECISION

2 Pursuant to Civil Local Rule 7-3(d)(2), Plaintiff Children’s Health Defense (“CHD”) respectfully

3 submits this Statement of Recent Decision to bring to this Court’s attention the decision of this Court in

4 United States v. Lonich, 2021 U.S. Dist. LEXIS 81562, Case No. 17-cr-00139 SI (N.D. Cal. April 28,

5 2021), amended on other grounds on May 5, 2021 (Dkt. #482). A true and correct copy of that decision,

6 as amended to state an indicative ruling, is attached hereto. In Lonich, this Court stated that “uncertainty

7 still surrounds the degree and duration of protection vaccines provide against the [COVID-19] virus or

8 its mutations.” Id. at *7. For the reasons set forth in the accompanying Request for Leave to File

9 Statement and concurrently-filed Request for Judicial Notice, this Order is relevant to the motions to

10 dismiss currently pending before this Court.

11 Dated: May 11, 2021 Respectfully submitted,

14 ROBERT F. KENNEDY, JR.
Founder and Chairman, Children’s Health Defense
15

16
MARY S. HOLLAND
17
General Counsel, Children’s Health Defense
18

19
ROGER I. TEICH
20

21 Counsel for Plaintiff

26
27

28
2
Plaintiff’s Request for Leave to File
Statement of Recent Decision
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 98-1 Filed 05/11/21 Page 4 of 9

No Shepard’s Signal™
As of: April 30, 2021 5:53 PM Z

United States v. Lonich
United States District Court for the Northern District of California
April 28, 2021, Decided; April 28, 2021, Filed
Case No. 14-cr-00139 SI; Case No. 17-cr-00139 SI

Reporter
2021 U.S. Dist. LEXIS 81562 *
139 SI
UNITED STATES OF AMERICA, Plaintiff, v. DAVID On April 23, 2021, the Court held a hearing on defendant
LONICH, et al., Defendants. David Lonich's renewed motion for compassionate release.
For the reasons set forth below, the Court GRANTS the
motion.

Counsel: [*1] For USA, Plaintiff (3:17-cr-00139-SI): Robert
David Rees, LEAD ATTORNEY, U.S. Attorneys Office, San BACKGROUND
Francisco, CA; Adam A. Reeves, United States Attorneys
Office, Northern District of California, San Francisco, CA; David Lonich is a 66-year-old man who suffers from prostate
David Countryman, US Attorney's Office, Criminal Division, cancer, hypertension, high cholesterol and sleep apnea.
Asset Forfeiture, San Francisco, CA. Dkt. [*2] No. 467 (Def.'s Reply) at 5.1 In October 2018, he
was sentenced by this Court to 80 months of imprisonment
and 36 months of supervised release for conspiracy to commit
For USA, Plaintiff (3:14-cr-00139-SI): Robert David Rees,
bank fraud and bank fraud, conspiracy to commit wire fraud
LEAD ATTORNEY, U.S. Attorneys Office, San Francisco,
and wire fraud, money laundering, false bank entries and
CA; Adam A. Reeves, Shining J. Hsu, United States
obstruction of justice. Dkt. No. 450 (Order Denying Defs.'
Attorneys Office, Northern District of California, San
Mot. for Compass. Release) at 1 and n.1. He is currently
Francisco, CA; Claudia A. Quiroz, United States Attorney's
incarcerated at FPC Montgomery in Alabama with a projected
Office, San Francisco, CA; David Countryman, US Attorney's
release date of June 19, 2024. Id. at 2. He has served
Office, Criminal Division, Asset Forfeiture, San Francisco,
approximately 41 percent of his sentence.
CA.
Mr. Lonich submitted an administrative request for
compassionate release to the FPC Montgomery Warden on
April 7, 2020, and supplemented it on April 23, 2020, through
Judges: SUSAN ILLSTON, United States District Judge. counsel. Dkt. No. 433 (Def.'s First Mot. for Compass.
Release) at 16-17; Dkt. No. 433-1 (Harris Decl.) Exs. A, F.
He first moved the Court to grant him compassionate release
on May 4, 2020. Dkt. No. 433 (Def.'s First Mot. for Compass.
Opinion by: SUSAN ILLSTON Release). At that time, the Court found that Mr. Lonich was
not a danger to the community, that he had "exhausted [his]
administrative remedies by submitting administrative requests
for compassionate release more than 30 days ago," but that he
Opinion did not [*3] suffer from a physical or mental condition
diminishing his ability to provide self-care within a
correctional facility from which he is not expected to recover.
Dkt. 450 (Order Denying Defs.' Mot. for Compass. Release)
ORDER GRANTING DEFENDANT LONICH'S at 4 and 4 n.5. The Court denied Mr. Lonich's initial motion
MOTION FOR COMPASSIONATE RELEASE

Re: Dkt. No. 977 in 14-cr-139 SI and Dkt. No. 455 in 17-cr- 1 Forease of reference, page number citations refer to the ECF
branded number at the top of each page in 17-cr-00139.
Case 3:20-cv-05787-SI Document 98-1 Filed 05/11/21 Page 5 of 9
Page 2 of 4
2021 U.S. Dist. LEXIS 81562, *3

"without prejudice to renewal" if his "health or prison 3582(c)(1)(A) motions filed by a defendant" and "the
conditions significantly deteriorate[d]." Id. Sentencing Commission's statements in U.S.S.G. § 1B1.132
may inform a district court . . . [but] are not binding." United
On December 22, 2020, Mr. Lonich was diagnosed with States v. Aruda, 993 F.3d 797, 2021 WL 1307884, at *11 (9th
COVID-19. Dkt. No. 455 (Def.'s Second Mot. for Compass. Cir. 2021) (per curiam).
Release) at 3. He filed the instant renewed motion for
compassionate release on January 11, 2021. Id. On March 12,
2021, the Court held a hearing on defendant's renewed motion DISCUSSION
for compassionate release. Dkt. No. 468 (Minute Entry for
Proceedings). At that hearing, the Court instructed defense As an initial matter, the Court finds that Mr. Lonich has
counsel to resubmit another administrative written request to exhausted administrative remedies pursuant to 18 U.S.C. §
BOP authorities for compassionate release and stayed the 3582(c)(1)(A). After the March 12, [*6] 2021 hearing on Mr.
instant motion pending resubmission. Id. On April 12, 2021, Lonich's second motion for compassionate release, Mr.
defendant filed a notice stating he resubmitted an Lonich filed another written request for compassionate release
administrative request for compassionate release to the with the FPC Montgomery Warden and waited 30 days for a
Warden of FPC Montgomery on March 12, thirty days had response while the Court held the instant motion in abeyance.
passed since the submission of that request and Mr. Lonich BOP authorities have not responded. Dkt. No. 471 (Notice re:
had not received any [*4] response from BOP authorities. Def.'s Admin. Request) at 1.
Dkt. No. 471 (Notice re: Def.'s Admin. Request).
The government opposes the motion, but states that if the
The Court held a second hearing on April 23, 2021. At the Court grants the motion, the Court should reduce Mr. Lonich's
hearing, the government stated that Mr. Lonich received the sentence to time served and convert his remaining sentence to
one-dose Johnson & Johnson COVID-19 vaccine earlier this a term of probation or supervised release conditioned upon
month. In addition, the sister of one of Mr. Lonich's victims home confinement, followed by the term of supervised release
spoke and objected to the procedure of compassionate release. with conditions originally ordered by the Court. Dkt. No. 461
Dkt. No. 473 (Minute Entry) at 1. (Gov't Oppo.) at 16.

At the April 23 hearing, the government argued this Court
LEGAL STANDARD lacks jurisdiction over the instant motion for compassionate

Defendant filed his motion pursuant to 18 U.S.C. §
3582(c)(1)(A). As amended by the First Step Act, that statute 2 Section U.S.S.G. § 1B1.13 states:
provides:
Upon motion of the Director of the Bureau of Prisons under 18
[T]he court, upon motion of the Bureau of Prisons, or U.S.C. § 3582(c)(1)(A), the court may reduce a term of
upon motion of the defendant after the defendant has imprisonment (and may impose a term of supervised release
fully exhausted all administrative rights to appeal a with or without conditions that does not exceed the unserved
failure of the Bureau of Prisons to bring a motion on the portion of the original term of imprisonment) if, after
defendant's behalf or the lapse of 30 days from the considering the factors set forth in 18 U.S.C. § 3553(a), to the
receipt of such a request by the warden of the defendant's extent that they are applicable, the court determines that—
facility, whichever is earlier, may reduce the term of (1) (A) extraordinary and compelling reasons warrant the
imprisonment . . . after considering the factors set forth reduction; or
in section 3553(a) to the extent that they are applicable,
if it finds that - (B) the defendant (i) is at least 70 years old; and (ii) has served
(i) extraordinary and compelling reasons warrant such a at least 30 years in prison pursuant to a sentence imposed under
reduction 18 U.S.C. § 3559(c) for the offense or offenses for which the
and that such a reduction is consistent with applicable defendant is imprisoned;
policy statements issued by the Sentencing Commission.
(2) the defendant is not a danger to the safety of any other
person or to the community, as provided in 18 U.S.C. §
18 U.S.C. § 3582(c)(1)(A).
3142(g); and
The Ninth Circuit [*5] has held "the Sentencing Commission (3) the reduction is consistent with this policy statement.
has not yet issued a policy statement 'applicable' to
U.S.S.G. § 1B1.13.
Case 3:20-cv-05787-SI Document 98-1 Filed 05/11/21 Page 6 of 9
Page 3 of 4
2021 U.S. Dist. LEXIS 81562, *6

release because Mr. Lonich has appealed his sentence to the medical conditions place him at higher risk of complications
Ninth Circuit. However, the government is not appealing his if infected with the virus and left open the possibility of
sentence. Mr. Lonich does not request this Court adjudicate renewal should his health or prison conditions deteriorate.
any issue subject to his appeal. Dkt. No. 467 (Def.'s Reply) at Dkt. No. 450 (Order Denying Def.'s Mot. for Compass.
6 n.1. Instead, he seeks a sentence modification under 18 Release) at 4. Since then, scientific studies have increased our
U.S.C. § 3582(c)(1), which provides this Court with understanding of COVID-19 risk factors. People who are 65-
jurisdiction over his motion for compassionate [*7] release.3 74 years old are 1,100 times more likely to die from infection
than the age 5-17 reference group. See Risk for COVID-19
The government argues Mr. Lonich's compassionate release is Infection, Hospitalization, and Death By Age Group
not warranted on three additional grounds: (1) defendant has (2/18/21), https://www.cdc.gov/coronavirus/2019-ncov/covid-
failed to present extraordinary and compelling reasons data/investigations-discovery/hospitalization-death-by-
warranting release, (2) he remains a danger to others and (3) age.html. [*9] Furthermore, the spread of coronavirus has
the 18 U.S.C. § 3553(a) factors weigh against his release. Dkt. severely impacted prisons nationwide. The Court finds Mr.
No. 461 (Gov't Oppo.) at 14-16. Lonich's age in conjunction with the pandemic's rampant
spread throughout the prison system constitutes an
The Court finds Mr. Lonich has presented extraordinary and extraordinary and compelling reason warranting his release to
compelling reasons justifying compassionate release due to home confinement.
his age, health conditions, and prior COVID-19 infection. The
government argues that Mr. Lonich's risk of severe viral The Court previously found Mr. Lonich was not a danger to
symptoms and death is reduced because he has received a the community and finds so again. Dkt. No. 450 (Order
COVID-19 vaccine. Nevertheless, uncertainty still surrounds Denying Def.'s Mot. for Compass. Release) at 4. Mr. Lonich
the degree and duration of protection vaccines provide against has no prior criminal record and has "kept all court
the virus or its mutations. At least one court has found in light appearances, complied with conditions of pretrial release, and
of the pandemic, a defendant's age and underlying health is not viewed as a flight risk or a danger to the community."
conditions constitute an extraordinary and compelling reason Dkt. No. 284 (Probation Presentence Report) at 15-16, 35.
to grant release even though the defendant was vaccinated and Upon release, Mr. Lonich will serve the remainder of his
had previously contracted COVID-19. See United States v. sentence in a home in Montgomery, Alabama that has been
Sweet, No. 07-20369, 2021 WL 1430836, at *2 (E.D. Mich. screened and approved by U.S. Probation. Dkt. No. 464 (U.S.
Apr. 15, 2021) (granting compassionate release to 73-year-old Probation Resp.) at 1. He will be under the care of his wife,
with chronic kidney disease and smoking history despite who has no criminal record and owns no weapons. Id.
vaccination and previous COVID-19 diagnosis, finding "the
threat of severe illness or death [*8] from COVID-19, while Finally, the Court finds the 18 U.S.C. § 3553(a) factors weigh
diminished, is nevertheless real.") Defendant further presents in favor of Mr. Lonich's release. Sentence modification
the expert testimony of infectious disease specialist and comports with § 3553(a)(2)(B)'s requirement to "afford
UCLA assistant clinical professor Tara Vijayan, M.D., adequate deterrence to criminal conduct," because the
M.P.H., who asserts that reinfection of people who have duration of Mr. Lonich's sentence will not be reduced.
recovered from COVID-19 is possible and "more likely in an Instead, he seeks to reduce his sentence [*10] to time served
environment where re-exposure with a high viral inoculum is and convert the remainder to a term of supervised release with
likely. Prisons and jails are such environments." Dkt. No. 467 a condition of home confinement, followed by the original
(Def.'s Reply) Ex. B. at 24-25.4 The government concedes term of supervised release with conditions imposed by the
"[t]he science surrounding COVID-19 and the possibility of Court. Dkt. No. 467 (Def.'s Reply) at 14-15. The government
reinfection is still developing." Dkt. No. 461 (Gov't Oppo.) at agrees with these conditions if Mr. Lonich's compassionate
14. The Court previously acknowledged Mr. Lonich's age and release is granted. Dkt. No. 461 (Gov't Oppo.) at 16.
Furthermore, modifying Mr. Lonich's sentence to home
confinement does not offend the need "to protect the public
3 In the event this Court lacks jurisdiction over defendant's motion
from further crimes of the defendant." 18 U.S.C. §
3553(a)(2)(C). The Court notes Mr. Lonich has been
for compassionate release because of the pending appeal, the Court
alternatively directs that this order should be construed as an disbarred as an attorney for the role he played in these
indicative ruling that the Court would grant the motion upon remand. financial crimes. Importantly, modifying Mr. Lonich's
See Fed. R. Crim. P. 37(a)(3). sentence to supervised release with a condition of home
4 At
confinement also aligns with the need to "provide the
the April 23 hearing, defense counsel read from some news
defendant with . . . medical care . . . in the most effective
articles regarding the risk of reinfection after vaccination. The Court
manner." 18 U.S.C. § 3553(a)(2)(D).
does not rely on that hearsay in this order.
Case 3:20-cv-05787-SI Document 98-1 Filed 05/11/21 Page 7 of 9
Page 4 of 4
2021 U.S. Dist. LEXIS 81562, *10

The Court acknowledges the testimony given by the sister of
one of Mr. Lonich's victims. She expressed understandable
anger at the losses suffered by her sister, who has since died
of cancer. She also objected generally to the compassionate
release mechanism. However, Congress passed the First Step
Act to allow defendants to directly move the Court for
compassionate [*11] release in extraordinary and compelling
circumstances, which the Court finds here. This order in no
way represents an exoneration of Mr. Lonich.

CONCLUSION

Having carefully considered the parties' papers, the Court
hereby GRANTS defendant's motion for compassionate
release, finding defendant has exhausted administrative
remedies, presents an extraordinary and compelling reason
warranting his release, poses no danger to the community and
that the 18 U.S.C. § 3553 factors weigh in his favor.

Accordingly, the Court modifies defendant's sentence of
imprisonment to time served, and the Court imposes a term of
supervised release with the special condition of home
confinement for the duration of defendant's current sentence
of imprisonment (until June 19, 2024), to be followed by the
term of supervised release imposed in the original sentence.

Defendant shall be released only after all release and travel
plans are in place. Defendant shall satisfy the 14-day
quarantine during his term of home confinement. See United
States v. Connell, No. 18-CR-00281-RS-1, 2020 U.S. Dist.
LEXIS 81642, 2020 WL 2315858 (N.D. Cal. May 8, 2020) at
*7 (ordering immediate release of defendant to satisfy the 14-
day quarantine "during his term of home confinement").

IT IS SO ORDERED.

Dated: April 28, 2021

/s/ Susan Illston

SUSAN ILLSTON

United States District [*12] Judge

End of Document
Case
Case3:20-cv-05787-SI
3:17-cr-00139-SI Document 482
98-1 Filed
Filed05/05/21
05/11/21 Page
Page18of
of29

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

7 UNITED STATES OF AMERICA, Case No. 14-cr-00139-SI-1
Case No. 17-cr-00319 SI (Dkt. No. 476)
8 Plaintiff,
ORDER AMENDING
9 v. COMPASSIONATE RELEASE ORDER;
INDICATIVE RULING PURSUANT TO
10 DAVID LONICH, et al., FEDERAL RULE OF CRIMINAL
PROCEDURE 37(A)
11 Defendants.
Re: Dkt. No. 1000
12

United States District Court
13
In an order filed April 28, 2021, the Court granted defendant David Lonich’s motion for
14
compassionate release. On April 30, 2021, the government filed a motion for reconsideration of
15
that order. The government largely repeated arguments that it had already made, either in the

Northern District of California
16
briefing or at the April 23, 2021 hearing. The government also incorrectly asserted that the Court’s
17
order relied on newspaper articles that defense counsel read at the April 23 hearing; the Court’s
18
order explicitly stated that it did not. See Dkt. No. 998 at 5 n.4.
19
However, the government’s motion for reconsideration cited – for the first time – case law
20
holding that a criminal defendant’s pending merits appeal confines “the District Court’s jurisdiction
21
to decide the compassionate release motion . . . to denying it, indicating that it presents a substantial
22
issue, or indicating that it would be granted if [the appellate court] were to remand the case to the
23
District Court for that purpose.” United States v. Pawlowski, 967 F.3d 327, 329 n.4 (3d Cir. 2020);
24
see also United States v. Barrett, 834 Fed. App’x 264, 265 (7th Cir. 2021) (affirming denial of
25
compassionate release motion where defendant had pending criminal appeal and stating, “If a party
26
moves for relief in the district court that the court lacks authority to grant because of a pending
27
appeal, Federal Rule of Criminal Procedure 37(a) provides the court with three options. The court
28
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1 may (1) defer considering the motion; (2) deny the motion; or (3) state either ‘that it would grant

2 the motion if the court of appeals remands for that purpose,’ or ‘that the motion raises a substantial

3 issue.’”).

4 Accordingly, the Court AMENDS the prior order to state that pursuant to Federal Rule of

5 Criminal Procedure 37(a), this Court would grant defendant Lonich’s motion for compassionate

6 release for the reasons stated in the April 28 order if the Court of Appeals remands for that purpose.

8 IT IS SO ORDERED.

10 Dated: May 4, 2021 ______________________________________
SUSAN ILLSTON
11 United States District Judge
12

United States District Court
13

Northern District of California
16

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Statement of Recent Decision CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI

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