Reply to Government’s Memorandum in Opposition to Defendant’s Second Motion to Reconsider Detention Order — No. 1:20-cr-00260 (Dkt. 35, E.D. Va.)

Summary

A Reply to Government's Memorandum in Opposition to Defendant's Second Motion to Reconsider Detention Order, Document 35, filed January 22, 2021 in United States v. Didier Kindambu, No. 1:20-cr-260 (MSN)(RDA), in the U.S. District Court for the Eastern District of Virginia, Alexandria Division. Defense counsel Kevin T. Carroll of Wiggin and Dana LLP replies to the government's opposition, Dkt. #34, to the defendant's renewed request for release on the basis of his coronavirus diagnosis. The reply argues that the risk of flight is remote given his family obligations, responds to the government's focus on his access to small aircraft and flight training, and cites decisions of other courts on release because of coronavirus. It asks the court to reconsider its detention determination. The certificate of service names Assistant United States Attorney Matthew B. Burke.

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“Reply to Government’s Memorandum in Opposition to Defendant’s Second Motion to Reconsider Detention Order — No. 1:20-cr-00260 (Dkt. 35, E.D. Va.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/reply-to-government-s-memorandum-in-opposition-to-defendant-s-second-m-c80de4f75f/, SHA-256 130fac8728a40e6dd2f7b90b56a5a2641b4f26fe696988f4dfe56b74cca0b25a.

Full text

Case 1:20-cr-00260-RDA Document 35 Filed 01/22/21 Page 1 of 5 PageID# 173

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

_________________________
United States of America :
:
v. : 1:20-cr-260(MSN)(RDA)
:
Didier Kindambu, :
:
Defendant. :

REPLY TO GOVERNMENT’S MEMORANDUM IN OPPOSITION TO
DEFENDANT’S SECOND MOTION TO RECONSIDER DETENTION ORDER

Defendant Didier Kindambu, by counsel, briefly but respectfully replies to the

Government’s memorandum in opposition (Dkt. #34) to his renewed request to be

released, under conditions the Court sees fit, on the basis of his coronavirus diagnosis.

The facts of Mr. Kindambu’s case and the applicable law are set forth fully in

his motion and the Government’s opposition papers. Both Mr. Kindambu and the

Government agree that he committed a bank fraud, a serious but also nonviolent crime,

and acknowledge that upon the entry of his guilty plea, he will then bear the burden of

demonstrating that he is not likely to flee. In sum and substance, the parties disagree

only about how large the risk of flight is in this case, and on how that risk should be

balanced against Mr. Kindambu’s recent and unfortunate coronavirus diagnosis.

Both Mr. Kindambu’s aged and infirm father and also his young children live in

this jurisdiction; and, given his estrangement from his wife, he is responsible for their

care. See Pretrial Services Report of October 21, 2020 (Dkt. #11) at 1. His seriously

taken responsibilities as a son and a father are alone sufficient to firmly anchor him to

1
Case 1:20-cr-00260-RDA Document 35 Filed 01/22/21 Page 2 of 5 PageID# 174

this district. They are enough to keep him from fleeing, abandoning vulnerable family

members, and leading life as a wanted fugitive, only to avoid a prison sentence which

he reasonably hopes, through his full cooperation with the Government, to be quite

substantially less than the circa four years advised by the Guidelines.

While acknowledging that Mr. Kindambu is a legal immigrant, an international

businessman, and a man of means, counsel believes the Government’s continued focus

upon his access to small aircraft and his de minimis student flight training is misplaced.

(See Dkt. #34 at 8-9.) Any attempt by Mr. Kindambu to fly solo across the Atlantic to

Africa in a propeller plane would end in his certain and miserable death alone at sea,

both because of these planes’ very short ranges, and his sharply limited beginner’s

airmanship skills.

Weighed against the risk of flight, which in the context of his family obligations

is quite remote, are Mr. Kindambu’s coronavirus diagnosis and multiple comorbidities

for this deadly disease: his age, race, sex, high blood pressure, heart disease and

diabetes, see Dkts. 11 and 34. While the infirmary at the Alexandria Detention Center

states that Mr. Kindambu complained of no coronavirus symptoms, he has indeed

complained of them to counsel. With no disrespect to the best efforts of the good

doctors and nurses at that infirmary, certainly none of us, if we were diagnosed with

coronavirus, would opt to receive treatment at a jail and not, say, Georgetown

University Hospital. Facing a deadly disease, Mr. Kindambu understandably seeks

access to the best medical care he can afford.

2
Case 1:20-cr-00260-RDA Document 35 Filed 01/22/21 Page 3 of 5 PageID# 175

No one would seriously suggest releasing a dangerous defendant facing a

murder charge, for example, on the basis of coronavirus. But the courts have released

defendants facing drug, gun, and even child pornography charges because of their

comorbidities and just the threat of coronavirus.1 So, too, have courts granted

compassionate release to prisoners serving sentences for drug, gun possession, and child

porn charges who contracted coronavirus in custody.2 This new and growing body of

persuasive federal case law, including decisions from fellow district courts within the

Fourth Circuit, indicates that the presence of coronavirus along with other health

conditions that increase the risk of succumbing to the virus are justifiable grounds for

release from detention.

It in no way minimizes the seriousness of bank fraud to also state that it is not

as grave as crimes involving drugs, guns, and child obscenity. And it would be an

avoidable tragedy if such a white-collar criminal case accidentally resulted in a

defendant’s death.

Counsel respectfully suggests that this is the gravamen of the matter before the

Court, whether addressing the Government’s fear of flight through incarceration, rather

than a very large bond and pervasive electronic monitoring for example, is worth

risking death in a bank fraud case. We submit that, weighing the equities, it is not.

1
See United States v. Sturmer, 458 F.Supp.3d 338, 342–43 (D.Md. 2020); United States
v. Childs, No. 8-19-cr-00181-DCC-7, 2020 WL 1910097, at *3-4 (D.S.C., April 20,
2020); United States v. McDuffie, 451 F.Supp.3d 281, 287 (S.D.N.Y. 2020); United
States v. Harris, 451 F.Supp.3d 64, 71 (D.D.C. 2020); United States v. Garraway, No.
19-CR-857-04 (NSR), 2021 WL 75662, at *3 (S.D.N.Y. Jan. 7, 2021); and United States
v. Gilbert, No. 20-404, 2021, WL 63267, at *5 (E.D.Pa. Jan. 7, 2021).
2
See United States v. Arreola-Bretado, 445 F.Supp.3d 1154, 1159 (S.D.Cal. 2020);
United States v. Fischman, No. 16-cr-00246-HSG-1, 2020 WL 2097615, at *2 (N.D.Cal.
May 1, 2020); United States v. Ramirez, No. 18-20676, 2021 WL 168594, at *5
(E.D.Mich. Jan. 19, 2021); and United States v. Watkins, Crim. No. CCB-09-534, 2021
WL 165145, at *2 (D.Md. Jan. 19, 2021).
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Case 1:20-cr-00260-RDA Document 35 Filed 01/22/21 Page 4 of 5 PageID# 176

Other courts have seen fit to release defendants and prisoners facing or serving

sentences for dangerous and awful crimes, due to coronavirus or even just the threat of

it to a person with comorbidities. Perhaps this Court can see its way through to exercise

either its discretion on behalf of a defendant under the Bail Reform Act, or its inherent

power to grant compassionate release to a prisoner, to grant a heavily bonded and

electronically-monitored supervised release to family man, admittedly guilty of one

count of bank fraud yet cooperating fully with the Government, who suffers from

coronavirus, and is at great risk of a bad result due to his age, race, sex, hypertension,

heart disease and diabetes.

WHEREFORE, Mr. Kindambu respectfully requests that this court again

reconsider its detention determination and please release him, under any such conditions

as the Court deems appropriate.

Respectfully submitted,

By: /s/

Kevin T. Carroll (VSB: 95292)
Wiggin and Dana LLP
800 17th Street, NW, Suite 520
Washington, DC 20006
kcarroll@wiggin.com
Phone: 202-800-2475
Facsimile: 212-551-2888
Counsel for Defendant

4
Case 1:20-cr-00260-RDA Document 35 Filed 01/22/21 Page 5 of 5 PageID# 177

CERTIFICATE OF SERVICE

I hereby certify that on January 22, 2021, I will electronically file the foregoing with the

Clerk of court using the CM/ECF system, which will then send a notification of such filing to the

following:

Matthew B. Burke, Esq.
Assistant United States Attorney

Pursuant to the Electronic Case Filing Policies and Procedures, a courtesy copy of the

forgoing pleading will be delivered to Chambers within one business day of the electronic filing.

/s/
Kevin T. Carroll (VSB: 95292)
Attorney for Defendant

File and source

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SHA-256: 130fac8728a40e6dd2f7b90b56a5a2641b4f26fe696988f4dfe56b74cca0b25a
Our copy: 35.pdf
Original: archive.org