Case 2:20-cv-04450-CBM-PVC Document 89-1 Filed 09/09/20 Page 1 of 8 Page ID #:3609

1 DECLARATION OF DANIEL A. BECK

2 I, Daniel A. Beck, declare:
3 1. I am an Assistant United States Attorney for the Central District of California, and
4 am one of the attorneys responsible for representing Respondents in the above-captioned
5 case. As such, I have personal knowledge of the following facts and, if called as a
6 witness, I could and would testify competently thereto.
7 2. Attached as Exhibit A hereto is a true and correct copy of an email that was sent
8 on September 3, 2020 by Naeun Rim, counsel for the Petitioners, to myself and to other
9 counsel of record for the Respondents, and which also copied Petitioners’ other counsel
10 in this action. In that email, Naeun Rim wrote “We write to meet and confer on (A) the
11 adequacy of Respondents’ compliance with the Court’s preliminary injunction order, and
12 (B) the sharing of certain documents … If we are unable to come to a resolution, we
13 intent to bring an ex parte application on the more time-sensitive issues.” Id.
14 3. The parties’ counsel arranged to meet and confer telephonically at 11:00 a.m. on
15 September 8, 2020 regarding issues raised in Ms. Rim’s September 3 email, including its
16 disputes over preliminary injunction compliance.
17 4. During the September 8 meet and confer, Naeun Rim stated that Petitioners would
18 be raising the disputed issues of Respondents’ preliminary injunction compliance with
19 the Court by an ex parte application, to be filed this Thursday, September 10, 2020.
20 Petitioners’ counsel stated that their ex parte application will seek sanctions that required
21 the Respondents to pay for all of the costs of the Special Master in this action, but will
22 not be seeking a modification of the preliminary injunction or other injunctive relief.
23 Petitioners’ counsel proposed that Respondents’ opposition briefing to the Petitioners’ ex
24 parte application on preliminary injunction compliance be filed this Monday, September
25 14, with Petitioners’ reply on September 15.
26 5. I objected that these issues should be first raised with the Special Master,
27 consistent with the procedure discussed at the September 1, 2020 status conference and
28 in the Court’s subsequent minute order [Dkt. no. 86]. I further objected that there was no
1
 Case 2:20-cv-04450-CBM-PVC Document 89-1 Filed 09/09/20 Page 2 of 8 Page ID #:3610

1 exigency that warranted presenting and deciding these issues first by ex parte application
2 to the Court, particularly since the request of monetary sanctions was not an emergency.
3 Petitioners’ counsel did not agree, and did not agree that they would not file their ex
4 parte application on September 10.
5 6. The parties’ counsel separately conferred about the scope of the Special Master’s
6 functions during another teleconference that was held at 3:00 p.m. on September 8.
7 Naeun Rim was not present for the Petitioners on this separate call, in which Petitioners
8 were instead represented by Donald Specter and Sara Norman. At this meet and confer, I
9 reiterated the Respondents’ objection to placing the issue of preliminary injunction
10 compliance before the Court by ex parte application this week, rather than having the
11 dispute go first before the Special Master. I notified Petitioners’ counsel that the
12 Respondents would be seeking ex parte relief accordingly by filing this application,
13 seeking an order requiring the parties to first present such issues to the Special Master.
14 7. In response, Mr. Specter stated that Petitioners had not yet decided that they
15 would be filing their ex parte application on preliminary injunction compliance this
16 week, and that Petitioners could not commit either way as to whether they would file.
17 Consistent with the position taken during the earlier meet and confer, however,
18 Petitioners’ counsel continued to refuse to agree that the disputes should first be raised
19 before the Special Master, rather than being raised by the ex parte application that Ms.
20 Rim had stated the Petitioners intended to file at the end of this week.
21 8. I further informed Petitioners’ counsel that if the Petitioners genuinely intended to
22 reverse course on their stated intent to apply ex parte on preliminary injunction
23 compliance later this week, then they could simply state so in a short response to the
24 Respondents’ ex parte application.
25 I declare under penalty of perjury that the foregoing is true and correct.
26 Executed on September 9, 2020 in Los Angeles, California.
27 _/s/ Daniel A. Beck__________________
DANIEL A. BECK
28
2
Case 2:20-cv-04450-CBM-PVC Document 89-1 Filed 09/09/20 Page 3 of 8 Page ID #:3611

EXHIBIT A
 Case 2:20-cv-04450-CBM-PVC Document 89-1 Filed 09/09/20 Page 4 of 8 Page ID #:3612

Beck, Daniel (USACAC)

From: Naeun Rim <nrim@birdmarella.com>

Sent: Thursday, September 3, 2020 10:56 AM
To: Staub, Keith (USACAC); Yang, Jasmin (USACAC); Green, Paul (USACAC); Beck, Daniel
(USACAC); Murillo, Olivia (USACAC)
Cc: Don Specter; Sara Norman; Dorothy Wolpert; Terry W. Bird; Shoshana E. Bannett; Jimmy
Threatt; Oliver Rocos; Shoshana E. Bannett; Christopher J. Lee; Kate S. Shin; Peter
Bibring; Peter Eliasberg
Subject: Lompoc Meet and Confer re Site Visit and Compliance with Preliminary Injunction

All,

We write to meet and confer on (A) the adequacy of Respondents’ compliance with the Court’s preliminary injunction
order, and (B) the sharing of certain documents. Separately, we will propose special masters by Friday, as ordered by the
Court.

If we are unable to come to a resolution, we intend to bring an ex parte application on the more time-sensitive
issues. These include (1) class members being sent to RRC despite having no recent history of violence/sex
offense/terrorism, (2) actually releasing people who have been approved for home confinement, and (3) rulings on what
information can be disseminated to whom.

Additionally, please confirm that your clients will preserve all surveillance recordings of Dr. Venter’s site visit, including
in locker rooms, and all notes they took regarding his visit.

A. Lack of Compliance with Preliminary Injunction Order

Below are the ways in which we believe Respondents have failed to sufficiently comply with the Court’s
Preliminary Injunction.

1. Failure to make full and speedy use of CARES Act authority or to give substantial weight to COVID-19 risk
factors. In the order granting preliminary injunction (“PI”), the Court found Petitioners were likely to
succeed on their habeas claim due to “the Lompoc Warden’s failure to take reasonable measures to
reduce risk of serious harm to inmates by failing to make meaningful use of his home confinement
authority as expanded by the CARES Act.” (PI at 35.) The Court went on to state that it “expects such
determinations by Respondents to include consideration of public safety and the nature of Petitioners’
convictions, but due consideration should be given to an inmate’s age and medical conditions in
evaluating eligibility for home confinement and compassionate release.” (PI at 39, citing Martinez-
Brooks.) Accordingly, in Item 4, the Court ordered, ”Respondents shall make full and speedy use of
their authority under the CARES Act and evaluate each class member’s eligibility for home confinement
which gives substantial weight to the inmate’s risk factors for severe illness or death from COVID-19
based on age (over 50) or Underlying Health Conditions authority as expanded by the CARES Act.” (PI at
49.) The Court further ordered Respondents to explain which “factors determined to outweigh the
danger to the inmate from COVID-19.” (Item 6, PI at 49.)

A month and a half has passed since the preliminary injunction, and the Review Worksheets make clear
that Respondents are not making full use of their authority or placing substantial weight on risk
factors. The Court has already found that the class members are at increased risk of severe illness or
death from COVID-19. Thus, to comply with the Court’s order, Respondents must grant home
confinement to all class members only if the danger factors outweigh the COVID-19 risk. We understand

1
Case 2:20-cv-04450-CBM-PVC Document 89-1 Filed 09/09/20 Page 5 of 8 Page ID #:3613
this to mean that class members who do not pose a danger to the public and have a viable release plan
where they can self-isolate should be granted home confinement. Instead, Respondents appear to be
applying the same restrictive home confinement criteria for class members as they are for everyone
else. This is a violation of the preliminary injunction. Please advise if Respondents are willing to make
the adjustments below, which Petitioners submit are necessary to ensure meaningful compliance with
the Court’s order.

RRC approved class members. Respondents have inexplicably denied home confinement for
class members who have been approved for RRC placement, even if they have no recent history
of violence/sex/offense terrorism. This includes class members such as Aaron Gilliam (Dkt 78-1
(Ex A) ECF 17, bates 24; Dkt 78-2 (Ex B-1) ECF 236, bates 298), who is HIV positive, 52, in on a
white collar offense, set to be released on 5/18/2021 (less than a year from now), has served
47.7% of his time (nearly half his sentence), is minimum security, and has a minimum PATTERN
score. It is clear from Mr. Gilliam’s example that Respondents are thumbing their nose at the
Court’s order to make full and speedy use of their CARES Act authority and to place substantial
weight on class-qualifying risk factors. Please advise if Respondents will agree to immediately
re-evaluate the approximately 91 class members placed on home confinement and approve
everyone who has a viable release plan so long as they (1) are not sex offenders, (2) have no
history of violence within the past ten years, and (3) are not convicted of a terrorism offense.

Actual release of those on home confinement. The Court has made clear time and time again
that Respondent must make speedy use of their CARES Act authority. We understand that many
people who have been granted home confinement are still detained, even some who were
approved weeks ago. This does not comply with the Court’s order. Please provide by no later
than Tuesday a list of all class members who were approved for home confinement and their
date of release or expected date of release. Attorney General Barr made clear that in prisons
where COVID is materially affecting operations, wardens should be placing people on home
confinement even if electronic monitoring is not available. Thus, that should not be a basis to
delay actual release by more than a few days. Please also provide a list of steps that must be
taken and why it takes more than 3 days to release someone who has been approved.

Factors Unrelated to Danger. Petitioners object to Respondents’ continued use of the factors
below to disqualify class members from home confinement even though they do not have a
bearing on whether the person poses a danger to the community. Please advise if Respondents
will agree that none of the below factors will be used to categorically disqualify a class member
from home confinement.

Lack of release plan. Although we agreed that this would not be a basis to deny home
confinement, we have seen a few who were denied on this basis, instead of
conditionally granted. If you are indeed following up with these people to give them an
opportunity, please advise how you are keeping track of them and what process is being
used within what timeframe. Please also advise how you intend to update us and the
Court about these decisions.
Example: Francisco Verdugo, Dkt. 78-4, ECF 38, bates 840. Hypertension, 60,
drug offense, release date is 10/17/20, min/min, no prison disciplinary history,
only reason for denial is lack of release plan - doesn't say it has been
conditionally granted.
Amount of time-served and/or length of sentence. This was not a factor in AG Barr’s
memo, has nothing to do with danger, and would categorically exclude all future
prisoners. Examples of denials:

2
Case 2:20-cv-04450-CBM-PVC Document 89-1 Filed 09/09/20 Page 6 of 8 Page ID #:3614
Charles Bush, Dkt. 78-2, ECF 106, bates 168. 80 years old, has chronic kidney
disease, in on white collar matter, served 52.7% of his sentence, no discipline,
min/min, has release plan, but denied because of length of time served.
Abraham Castro, Dkt 79-3, ECF 47, bates 58. Asthma and chronic kidney disease,
68, drug offense, min/min, 26.9 percent of sentence, denied due to length of
sentence and lack of release plan.
PATTERN scores, PSF factors, alleged STGs and gang membership, old non-violent
detainers, and escape history, even if the class member is not a sex offender/terrorist
and has no history of violence or escape within the last ten years.
Prison discipline that is more than a year old or within the 300-400 series, unless
violence is involved.
Denials based on factual errors.
Improper denials for those who actually meet all of the Barr criteria for prioritization:
Petitioners object to denials for home confinement for people who actually meet even
the restrictive Barr factors (even though they were not meant to be
requirements). Examples:

Peter Lee, Dkt. 79-3, ECF 181, bates 192. Diabetes and asthma, 53, fraud
conviction, 52.7% served, min/min, no prison discipline, has a release plan, but
denied because he has a supervised release violation.
Charles Bush, Dkt. 78-2, ECF 106, bates 168. 80 years old, has chronic kidney
disease, in on white collar matter, served 52.7% of his sentence, no prison
discipline, min/min, has release plan, denied????

Failure to sufficiently identify/evaluate/notify entire class. Items 1-4 of the Court’s preliminary
injunction defined a provisional class and required Respondents to identify all class members, notify
them that they would be evaluated for home confinement, and provide them with the opportunity to
provide a release plan. Respondents have failed to fully comply with this requirement because the
method used by Respondents does not sufficiently identify all class members. Petitioners have provided
examples of Lompoc prisoners who have class-qualifying conditions either documented in their BOP
medical records or verifiable through independent medical records. Petitioners reiterate the proposal
documented in the Joint Status Report.

Petitioners reject limiting the records to the diagnosis sheets, as that does nothing to reduce the burden
on BOP because BOP must still identify and extract the diagnosis sheets in the BEMR, and if a condition
is documented in the records but not listed in the diagnosis sheet, that is not an appropriate basis to
exclude that person from the class. Moreover, it is our understanding that that ICD codes come from the
diagnosis sheet, so this is a distinction without a difference. Please advise as to whether Respondents
continue to object to Petitioner’s proposal.

Failure to implement a process for future class members. Item 1 of the Court’s preliminary injunction
includes “all current and future people in post-conviction custody….” Respondents’ proposal to wait
approximately 30-days until incoming prisoners have had their health issues input into SENTRY
needlessly puts medically vulnerable class members at risk, for both the people coming in and the
people who are already inside. To comply with the Court’s injunction, we submit that an incoming
prisoner must be provided with some process/opportunity to submit to Respondents medical records
proving they have a class-qualifying condition up to 30 days in advance of surrendering so they can
quickly be added to the class list and evaluated for home confinement before exposing themselves and
others to infection. Respondents would also be given an opportunity to authorize Petitioner’s counsel
to review their BOP medical records. If denied home confinement, Respondents would have to explain
what danger factors outweighed the COVID-19 risk factor for those class members. Disputes could be
resolved by a Special Master. Please advise as to whether Respondents continue object to this proposal.

3
Case 2:20-cv-04450-CBM-PVC Document 89-1 Filed 09/09/20 Page 7 of 8 Page ID #:3615

4. Failure to take COVID-19 into account in the Compassionate Release process. Item 7 required
Respondents to file a declaration that sets forth the “criteria for compassionate release that takes into
account COVID-19, and an explanation if no such criteria exists.” Respondents set forth a declaration
that simply says:

“At this time, the BOP’s compassionate release criteria do not specifically include COVID-19. . . . In
response to COVID-19, the BOP issued guidance advising institutions that staff should consider an
inmate’s request for compassionate release with the COVID-19 pandemic in mind. The expectation is
that institutions reviewing compassionate release requests can work with appropriate BOP medical staff
to assess whether a particular inmate’s medical condition(s) would meet BOP’s current compassionate
release criteria given the context of COVID-19 and its potential implications.” (Dkt. 45 ¶¶ 9-10.)

This declaration does not explain why the compassionate release criteria does not take into account
COVID-19 and simply states that there is an expectation that institutions will keep COVID-19 in mind
when applying the standard criteria. At minimum, Respondents should expedite their compassionate
release decisions so that prisoners may seek court relief promptly. Please advise as to whether
Respondents will agree to decide compassionate release requests within 7 days of receipt by the
Warden.

5. Failure to Provide Notice of BOP’s Compassionate Release Decisions by August 21. Item 8 of the
preliminary injunction requires Respondents to provide notice of compassionate release decisions
(referrals and denials) for all prisoners who had submitted a compassionate release request by that
time. Respondents have not submitted a list of such referrals or denials to date and has only submitted
a list of compassionate release decisions granted by courts. Please provide a list of the compassionate
release decisions by Tuesday.

6. Missing Review Worksheets. We are still missing the review worksheets of approx.. 60 people, the
names of which we provided in a separate email. This violates Item 6 and the extension order which
required these to be filed by August 20. Please produce those by Tuesday.

7. Failure to Provide for Confidential Legal Calls. You have confirmed that a staff member is in the room
when we have calls with class members, which violates the Courts order that Respondents allow for
confidential calls. Please advise as to whether there are any rooms with a phone and window in the
facility where class members can take legal calls, such that a staff member can keep visual contact
without listening in on the call.

Dissemination of Review Worksheets and Class Member Materials

1. Review Worksheets. As a courtesy, we have agreed not to disseminate Review Worksheets to anyone
outside of the litigation team for a reasonable time, which we will honor until this Friday. After that
date, we intend to follow the following protocol unless and until the Court enters a protective order
requested by Respondents: Petitioners’ counsel will redact names (except initials), reg-numbers,
medical conditions, PSF factors, Violence/Sex Offender/Terrorism indications, SGT/gang factors, and DST
information from all review worksheets, unless provided to the subject of the Review Worksheet or his
counsel or representative. We do not intend to provide an unredacted Review Worksheet to a class
member unless we receive a specific request from them, their counsel, or representative. We believe
we are ethically obligated to do so upon request. We do not have the capacity to orally communicate
this information to everyone, to control whether or not they write it down, and where they disseminate
it.
2. Class List. We have been asked by several Federal Public Defenders’ offices if we can provide them with
the class list so they can determine if the list includes class members who were sentenced within the

4
 Case 2:20-cv-04450-CBM-PVC Document 89-1 Filed 09/09/20 Page 8 of 8 Page ID #:3616
jurisdiction of their office (FPDs are generally appointed as compassionate release counsel for those
sentenced in their jurisdiction). They would otherwise comply with the protective order. Please advise
whether you object to us providing the class list to Federal Public Defenders Offices only. If so, please
provide a basis.
3. Medical Records. Please confirm that we may provide medical records produced to us to the subject of
that medical record or their counsel or representative.
4. Destruction. To the extent that any protective order requires the destruction of records after the
litigation, we believe that requirement is an overreach and not justified in this case. Such provisions
may be appropriate for trade secret matters, but that is not at issue here. Please advise whether you
object to a modification of any protective order that includes this requirement.

Naeun Rim
Principal
O: 310.201.2100
F: 310.201.2110
E: nrim@birdmarella.com
Bird, Marella, Boxer, Wolpert, Nessim,
Drooks, Lincenberg & Rhow, P.C.
1875 Century Park East, 23rd Floor
Los Angeles, California 90067-2561
www.BirdMarella.com