Order on Motion to Reconsider Bond Revocation — No. 4:21-cr-00054 (Dkt. 112, S.D. Tex.)
Summary
An order by Magistrate Judge Dena Hanovice Palermo of the Southern District of Texas, Houston Division, in United States v. Lola Shalewa Barbara Kasali, Case No. 4:21-CR-0054, signed August 26, 2021 and entered as Document 112 on 08/27/21, denying Kasali's motion (ECF No. 98) to reconsider the revocation of her bond. Kasali was charged by complaint under 18 U.S.C. §§ 1014, 1343, 1344, 1957, arrested at the airport on September 16, 2020 on her way out of the country, and released on a $10,000.00 unsecured bond with electronic monitoring; the court later revoked the bond under 18 U.S.C. § 3148(b)(2)(B) for repeated violations (ECF No. 56). The court finds her COVID-19 health arguments do not meet the burden for reconsideration or for temporary release under § 3142(i). The government opposed at ECF No. 101.
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Case 4:21-cr-00054 Document 112 Filed 08/27/21 in TXSD Page 1 of 15
United States District Court
Southern District of Texas
ENTERED
August 27, 2021
UNITED STATES DISTRICT COURT
Nathan Ochsner, Clerk
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA, §
§
Plaintiff, §
v. §
§
LOLA SHALEWA BARBARA § CASE NO. 4:21-CR-0054
KASALI, §
§
Defendant. §
§
§
§
ORDER ON MOTION TO RECONSIDER BOND REVOCATION
Pending before the Court is Defendant Lola Kasali’s motion, asking the court
to reconsider its decision to revoke her bond, Order, ECF No. 56, and now seeking
release based on public health concerns surrounding the COVID-19 (“COVID”)
pandemic. ECF No. 98. 1 The Government opposes Defendant’s motion, arguing that
Defendant has failed to meet her burden to demonstrate why the Court should
reconsider release. ECF No. 101.
Based on a review of the motion, response, and record, the Court determines
that the motion should be denied.
1
COVID-19 is an infectious disease caused by a new virus that has resulted in over 600,000 deaths
in the United States. See, e.g., U.S. v. Morris, No. 3:19-CR-573-B, 2020 WL 1694301, at *4 (N.D.
Tex. Apr. 6, 2020).
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I. BACKGROUND
Pursuant to 18 U.S.C. § 3148(b)(2)(B), the Court revoked Defendant’s bond
after her repeated violations of her bond conditions. Order, ECF No. 56. The facts
supporting the revocation are detailed in that order. Id. The Court will summarize
only some of the salient facts as follows:
Initially, Defendant was charged in a criminal complaint with making false
statements to a financial institution, wire fraud, bank fraud, and engaging in
prohibited monetary transactions, in violation of 18 U.S.C. §§ 1014, 1343, 1344,
1957. Complaint, ECF No. 1. 2
On September 16, 2020, Defendant was arrested at the airport on her way out
of the country. At her initial appearance that same day, the Court released Defendant
on an unsecured bond in the amount of $10,000.00 and with conditions that included
electronic monitoring. ECF Nos. 5, 6. Because of the late hour and instead of
incarcerating the Defendant overnight, the Court released her on bond and instructed
her to report the next day to Pretrial Services (“PTS”) so that her GPS location
monitor could be installed on her ankle. ECF No. 6; Order, ECF No. 56 at 1.
From the first day, Defendant violated the conditions of her release. Despite
2
The grand jury charged Defendant in an indictment with two counts of making false statements
to a financial institution in violation of 18 U.S.C. § 1014 and two counts of bank fraud in violation
of 18 U.S.C. § 1344. Indictment, ECF No. 27. The indictment alleges that Defendant unlawfully
obtained more than $3.8 million. Id. at 6.
2
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the instruction from the Court, Defendant failed to report to PTS the next day to have
the GPS monitor installed. When Defendant failed to report as instructed, the
Government filed a motion to revoke her bond. ECF No. 9. The Court issued a
warrant, and Defendant was arrested and taken into custody. ECF No. 16. PTS also
filed a petition for action based on this violation. Pet., ECF No. 12. On October 1,
2020, this Court held a bond revocation hearing. Based on the argument of her
counsel, however, the Court did not revoke the bond but released her after instructing
Defendant on the necessity to follow the conditions of her release. Order, ECF
No. 56 at 2.
Nonetheless, despite the Court’s warning at the first bond revocation hearing,
Defendant repeatedly continued to violate the conditions of her release. Id. After
months of non-compliance, PTS filed a petition with the Court seeking revocation
because Defendant failed to report to and follow instructions from her assigned
probation officer. ECF No. 43 at 1. The Court again issued a warrant for Defendant’s
arrest on April 13, 2021. ECF No. 43.
On April 22, 2021, Defendant appeared for her revocation hearing. At the
hearing, Defendant admitted the charges. Hrg. Tr., ECF No. 53 at 7. In addition,
Defendant’s probation officer testified to Defendant’s uncooperative behavior since
October. Id. at 11–27. The officer testified that Defendant refused to answer phone
calls from her probation officer, used her mother as an intermediary with PTS,
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tampered with her location monitoring device, failed to charge the battery of the
device, claimed she had COVID to prevent in-person inspection of the monitor by
PTS, and refused to provide proof of her alleged COVID infection. Id.; Order, ECF
No. 56 at 1–4. When PTS attempted to set up virtual appointments because
Defendant claimed to have COVID, Defendant refused, claiming she only had a “flip
phone.” Hrg. Tr., ECF No. 53 at 19.
At her initial appearance, Defendant requested to live with her father, who
was supposed to act as her third-party custodian. See ECF No. 6. Instead, Defendant
violated the conditions by living with her mother. Order, ECF No. 56 at 3. PTS
instructed Defendant to have her attorney file a motion with the Court to change the
third-party custodian from her father to her mother. Id. Defendant refused, and
remained at her mother’s home, continuing to knowingly violate her bond
conditions. Id.
Following the April hearing, this Court ordered Defendant to be detained
pending trial, concluding that she was unlikely to abide by any condition or
combination of conditions of release. Order, ECF No. 56 at 6 (citing 18 U.S.C.
§ 3148(b)(2)(B)). Defendant appealed this decision to the district judge. ECF No. 58.
Because the order revoking bond was thorough and well-reasoned and Defendant
presented no new facts, the district judge denied Defendant’s motion to revoke the
detention order. Order, ECF No. 62. Without going through her counsel, Defendant
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sent two letters to the Court, seeking to revoke the bond or obtain an ex parte hearing.
ECF Nos. 66, 86. This Court denied the first letter motion as inappropriate contact
with the court and directed her appointed counsel to address Defendant’s concerns.
Order ECF No. 69. After the second such letter, the district judge issued an order
that all communications with the court on behalf of the Defendant may only be made
through appointed counsel. Order, ECF No. 96.
Now Defendant asks this Court to reconsider its earlier decision to revoke
Defendant’s bond based upon COVID concerns.
II. LEGAL STANDARD
Defendant seeks release, citing mounting public health concerns and recent
measures federal and state governments have implemented to reduce the spread of
the COVID virus. Defendant claims that she has asthma, placing her at a higher risk
for serious health complications if she were to contract COVID at the Federal
Detention Center-Houston (“FDC”), particularly because she is not vaccinated. ECF
No. 98 at 1 - 2. Defendant has failed to cite to any case or statutory provision in
support of her motion. Thus, the legal basis for Defendant’s motion is ambiguous.
There are two statutory provisions that could provide a basis for the relief
sought under the Bail Reform Act, 18 U.S.C. § 3142(f)(2)(B) or § 3142(i).3 The
3
Noting the lack of any statutory reference in the motion, the Government opposed release under
both provisions. ECF No. 101 at 4–5.
5
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Bail Reform Act provides in relevant part that:
[t]he [detention] hearing may be reopened, before or after
a determination by the judicial officer, at any time before
trial if the judicial officer finds that information exists that
was not known to the movant at the time of the hearing
and that has a material bearing on the issue whether there
are conditions of release that will reasonably assure the
appearance of such person as required....
Id. § 3142(f)(2)(B). Since the Government agreed to Defendant’s release on bond at
her initial appearance, she never had a detention hearing. Therefore, this provision
does not seem to apply.4
Alternatively, the court may temporarily release a detained defendant to the
custody of an “appropriate person, to the extent that [the court] determines such
release to be necessary for the preparation of the person's defense or for another
compelling reason.” Id. § 3142(i). The Court will analyze Defendant’s motion under
both provisions.
A. Defendant Has Not Met Her Burden to Reconsider Release under
18 U.S.C. § 3142(f)(2).
Under § 3142(f)(2), a defendant may request a detention hearing to reconsider
the issue of pre-trial detention. The Fifth Circuit has interpreted this standard as
4
The Court notes that even when a Defendant has waived his right to a detention hearing, he may
seek reconsideration under this provision. Compare Order, ECF No. 39 at 4, United States v. Sixto
Gonzalez-Rodriguez, No. 4:19-cr-847 (S.D. Tex. Aug. 13, 2021) (analyzing motion for release
under§ 3142(f)(2) when defendant sought release after waiving his detention hearing), with
United States v. Sanmiguel, No. 3:19-CR-630-B, 2020 WL 3036636, at *2 (N.D. Tex. Jun. 5, 2020)
(holding that when there was no detention hearing, the issue of temporary release is more
appropriately addressed under § 3142(i)).
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requiring new information that was not known at the time of the hearing. U. S. v.
Stanford, 367 F. App’x 507, 509–10 (5th Cir. 2010) (citing U.S. v. Hare, 873 F.2d
796, 799 (5th Cir. 1989) (finding testimony concerning Defendant’s character does
not constitute new evidence)). Accordingly, Defendant bears the burden of providing
new material information bearing on conditions of release that warrants a detention
hearing. Id. at 510.
Based on her unsubstantiated and conclusory claim that she has asthma and
the general concerns about the risk of contracting COVID, Defendant asks the Court
to convene a detention hearing to allow the Court to consider releasing her to the
custody of her father. ECF No. 98 at 2-3. However, the state of the COVID pandemic
and Defendant’s concerns of heightened COVID risks in prison do not factor into
the appropriate conditions of a defendant’s release under § 3142(f)(2). Sanmiguel,
2020 WL 3036636, at *2 (collecting cases). Therefore, Defendant’s unsupported
claim that she is at higher risk to contract COVID at the FDC fails to meet the burden
of presenting new information pertaining to Defendant’s release.
The Court previously determined that no condition or combination of
conditions of release would ensure Defendant’s presence at trial, which the district
judge affirmed. Order, ECF No. 56 at 6; Order, ECF No. 62 Defendant has not
presented any evidence to convince the Court otherwise.
Accordingly, under 18 U.S.C. § 3142(f)(2), Defendant’s motion is denied.
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B. Defendant Has Not Provided a “Compelling Reason” to Be
Temporarily Released Pursuant to 18 U.S.C. § 3142(i).
Most courts have analyzed defendants’ pleas for release due to COVID under
§ 3142(i), requiring a “compelling reason.” U.S. v. Slaughter, ---F.Supp.3d---, No.
3:18-cr-00027, 2020 WL 1685117, at *6 (S.D. Tex. Apr. 6, 2020) (finding that
defendant’s COVID concerns alone did not constitute sufficient reason to grant
temporary release under § 3142(i)). Under this provision, a defendant bears the
burden of establishing the compelling reason and that release is necessary. Id. at *6.
Courts have been mindful of the unprecedented magnitude of the COVID
pandemic and the serious health risks presented; yet a defendant is not entitled to
temporary release under § 3142(i) based solely on generalized COVID fears and
speculation. Id. at *7 (denying release when defendant’s motion was not specific to
his case); U.S. v. Kerr, No. 3:19-cr-296-L, 2020 WL 1529180, at *3 (N.D. Tex. Mar.
31, 2020) (“the court cannot release every detainee who may be at risk of contracting
COVID-19, as it would then be required to release all detainees.”). Courts facing
this issue have instead looked to the specificity of the defendant’s concerns to make
an individualized determination as to whether temporary release is warranted.
United States v. Wright, No. 3:18-cr-635-N, 2020 WL1694298, at *4 (N.D. Tex.
Apr. 7, 2020) (collecting cases). Typically, courts have granted relief under § 3142(i)
sparingly and in extreme circumstances, “such as where the defendant is suffering
from a terminal illness or serious injuries.” Wright, 2020 WL1694298, at *4 (citing
8
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U.S. v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036, at *2 (E.D. N.Y. Mar 20,
2020) (permitting release of defendant suffering from terminal AIDS that could no
longer be managed by correctional authorities due to the pandemic)).
The court in Slaughter adopted a four-factor analysis to consider whether the
defendant met his burden to show a “compelling reason” for temporary release:
(1) the original grounds for the defendant’s pretrial detention; (2) the specificity of
the defendant’s stated COVID-19 concerns; (3) the extent to which the proposed
release plan is tailored to mitigate or exacerbate other COVID risks to the defendant;
and (4) the likelihood that the defendant’s proposed release would increase COVID
risks to others. 2020 WL 1685117, at *2 (citing U.S. v. Clark, ---F.Supp.3d---, 2020
WL 1446895 (D. Kan. Mar. 25, 2020)). The factors are not weighed equally but
considered collectively to guide the court’s determination whether a “compelling
reason” exists justifying temporary release as “necessary.” Id.
The Court applies the four-factor test to determine whether Defendant has met
her burden of establishing a compelling reason necessitating temporary release.
a. Defendant’s bond was revoked because no condition or
combination of conditions would assure her appearance.
As stated above and in more detail in the Court’s revocation order, based on
Defendant’s repeated failures to comply with the bond conditions and refusals to
meet with her probation officer, this Court determined that no condition or
combination of conditions would reasonably assure the Defendant’s appearance as
9
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required. Order, ECF No. 56 (citing 18 U.S.C. § 3148(b)(2)(B)).
In her motion, Defendant does not address the Court’s concerns regarding her
previous behavior in a release plan. Defendant merely asserts that she should be
released on bond to her father’s house to prevent her from contracting the virus and
allowing her to meet with counsel face-to-face. Defendant has not shown any
circumstances that would assure Defendant’s appearance or Defendant’s compliance
with conditions of release.
No information has been presented whether Defendant’s father is willing or
able to serve as a third-party custodian. See Slaughter, 2020 WL 1685117, at *6
(court assumed the mother or grandmother would consent to this responsibility but
found it only slightly favors temporary release). Based on his past statement to the
Court when Defendant failed to appear for installation of her ankle monitor that she
would not be appearing at PTS office because she did not need a GPS monitor, the
Court has reservations. See ECF No. 56 at 2. Considering Defendant’s past refusal
to reside with her father as required in her bond at her request, her tampering with
the location monitoring device, her refusal to be supervised, her claim of having
COVID, her use of her mother as an intermediary with PTS, and her mother’s
obvious inability to supervise Defendant, the Court does not believe that conditions
exist that would assure Defendant’s appearance if she were to be temporarily
released.
10
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Accordingly, Defendant’s past behavior weighs in favor of continued
detention.
b. Defendant presented no proof or specificity for her stated
COVID concerns.
Defendant is required to establish significant circumstances warranting
temporary release in her case. The only argument Defendant makes to distinguish
her case from generalized speculation is that she has not received a COVID vaccine,
and she allegedly suffers from asthma. ECF No. 98 at 2. The Government
represented to the Court that the FDC is offering vaccinations to all inmates, ECF
No. 101 at 9; therefore, Defendant’s unvaccinated status is voluntary on her part. See
Slaughter, 2020 WL 1685117, at *7 (“[Defendant’s] position, while regrettable, is
of [her] own making.”).
While courts have acknowledged that asthma may result in an individual’s
increased risk of developing a serious COVID illness, 5 the CDC states that the risk
is only increased if the asthma is moderate to severe.6 Plaintiff has failed to provide
any proof to support her claim that she suffers from asthma, thus it is without any
5
See U.S. v. Stern, 465 F.Supp.3d 699, 702 (S.D. Tex. 2020) (acknowledging that asthma may
increase the risk of developing severe COVID symptoms but denying Defendant’s request for
release prior to sentencing); Sanmiguel, 2020 WL 3036636, at *3, n. 1 (noting that persons with
underlying illnesses the CDC identified may have a higher risk of developing severe symptoms
from COVID, including asthma).
6
See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html, last
visited on 8/26/2021.
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factual support. She does not indicate how long she has had it, how severe it is, what
her symptoms are, whether she has reported this condition to the FDC, whether a
doctor there has treated or failed to treat her condition, or whether the procedures
the FDC has in place are effective or ineffective with respect to her condition. See
Sanmiguel, 2020 WL 3036636, at *3.
Without evidence supporting her assertion, this Court cannot find that
Defendant’s motion musters more than generalized speculation about COVID. Id.
Courts have hesitated to release defendants unless the specific circumstances
absolutely necessitate release. Id. (denying temporary release despite defendant’s
underlying medical conditions when she did not allege that she was being detained
near someone diagnosed with COVID, was exposed to anyone diagnosed with it, or
allege how measures in place at the detention facility were insufficient).
Because Defendant has not demonstrated how her claim specifically warrants
temporary release, this factor weighs in favor of denying Defendant’s motion.
c. Defendant did not provide a proposed release plan to address
the Court’s concerns or mitigate COVID risks.
Defendant has not provided a release plan to demonstrate that she would
comply with conditions or that temporary release would mitigate COVID risks.
Defendant merely proffers that placing her on bond would prevent her from
becoming a potential carrier who could in turn infect staff members at the detention
center and further spread the virus to others with the outside community. ECF No. 98
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at 3. Defendant provided no plan as to how residing with her father would reduce
the risk of her exposure to COVID. Although the Court can guess that living at her
father’s would involve less exposure to others than the FDC, there is no information
as to where he lives, who else lives there, or what his contacts are with others. She
has not shown how living with him will result in her compliance with bond
conditions she repeatedly violated in the past.
Thus, Defendant has not met her burden to show that temporary release is
beneficial in this case, so this factor weighs against release.
d. Temporarily releasing Defendant would increase COVID risks
to others.
Finally, temporarily releasing Defendant before trial imposes a significant
COVID risk to the community. Supervising Defendant while on bond would impose
a heightened risk of contracting the COVID virus to PTS. Defendant previously
refused phone calls or to schedule virtual meetings from her probation officer. If
Defendant were released, PTS agents would risk their health and safety to conduct
in-person appointments necessary to monitor her. See Slaughter, 2020 WL 1685117,
at *6 (stating that it is appropriate to consider if the release plan would increase
COVID risks to others, particularly if the defendant is likely to violate conditions of
release).
Considering the four factors, Defendant has not met her burden to show that
a “compelling reason” exists such that temporary release is “necessary” pursuant to
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§ 3142(i).
C. Defendant Has Not Demonstrated that Preparing Her Defense
Requires Temporary Release.
While most courts have interpreted COVID requests for release under
§ 3142(i) as a “compelling reason,” some courts have considered these motions in
view of Defendant’s ability to prepare a defense. See U.S. v. Galvan, No. 3:20-cr-
00019, 2020 WL 4604502, at *7 (S.D. Tex. Aug. 11, 2020) (denying Defendant’s
motion for temporary release on the grounds that it is not necessary for Defendant’s
ability to prepare a defense). As the court explained in Galvan, the inquiry under
§ 3142(i) is not whether pretrial release will assist in the preparation of the
defendant’s defense, but whether it is necessary for the preparation of that defense.
Id. (emphasis in original).
Defendant alleges that placing her on bond would “allow counsel to have face-
to-face meeting[s] with [Defendant] to go over discovery matters at her home or at
counsel’s office.” ECF No. 98 at 3. However, Defendant does not argue or present
any proof that such release is necessary for the ability to present a defense. Mere
convenience does not meet the burden of proof necessary for temporary release
under § 3142(i). Galvan, 2020 WL 4604502, at *7. Accordingly, Defendant’s
motion is denied for this reason as well.
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III. CONCLUSION
Therefore, it is ORDERED that Defendant’s motion to reconsider the Court’s
order revoking her bond, ECF No. 98, is DENIED.
Signed on August 26, 2021, at Houston, Texas.
_________________________________
Dena Hanovice Palermo
United States Magistrate Judge
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