11th Circ. Won't Let Reality Winner Out Of Jail For Pandemic

By Nathan Hale
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Law360 (December 7, 2020, 10:38 PM EST) -- The Eleventh Circuit on Monday denied Reality Leigh Winner's bid for home release due to COVID-19, finding a Georgia federal court did not abuse its discretion when it decided not to reduce the former defense contractor's sentence for leaking a report on Russian interference in U.S. elections.

In an eight-page opinion, the appeals panel rejected Winner's argument that the trial court abused its discretion when it ruled — without holding an evidentiary hearing — that she had not shown her medical conditions and the conditions at the Texas federal prison where she is being held justify early release.

"This ruling, while succinct, does not constitute a 'fail[ure] to apply the proper legal standard' or a failure 'to follow proper procedures in making its determination,'" the three-judge panel said, adding that this conclusion is in line with its findings in similar sentence-reduction cases under the same law.

The judges also said that because they found no abuse of discretion, they did not need to address Winner's other arguments.

The U.S. Air Force veteran was sentenced to more than five years in prison in August 2018 after pleading guilty to violating the Espionage Act by illegally leaking a top secret document to a news outlet while working as a contract linguist with Pluribus International Corp., a contractor for the National Security Agency. She is due to be released in November 2021.

In April, she asked the district court for early release so she can avoid adverse consequences of the coronavirus pandemic sweeping through federal prisons. In her motion for compassionate release, Winner cited a "propensity for respiratory illnesses" and the potential for a partial lockdown to exacerbate her bulimia nervosa. She also expressed concern that lockdowns imposed because of COVID-19 would prevent her from using exercise and other routines as a coping mechanism for her eating disorder.

U.S. District Judge J. Randal Hall rejected Winner's request later that month based on his finding that she had not exhausted her administrative remedies with the Bureau of Prisons. But he added that even if she were to exhaust her options at the bureau, he did not find her a candidate for release from custody at Federal Medical Center Carswell in Fort Worth, Texas.

"Winner has not carried the burden of demonstrating that her specific medical conditions under the particular conditions of confinement at FMC Carswell place her at a risk substantial enough to justify early release," the judge said. "In fact, the court is constrained to observe that Winner is in a medical prison, which is presumably better equipped than most to deal with any onset of COVID-19 in its inmates."

In addition to her abuse of discretion argument, Winner also contended in her appeal that Judge Hall erred as a matter of law by finding that he lacked the authority to waive the exhaustion requirement and by rejecting her argument that the First Step Act gave him the same authority as the director of the BOP to determine "extraordinary and compelling" reasons for a release.

During oral arguments last month, Winner's attorney Baruch Weiss argued that the district court misinterpreted the First Step Act by finding that she was required to first petition the director of the BOP and not file a motion with the court for at least 30 days. Winner filed her motion two days after she petitioned the BOP.

"The statute by its very terms doesn't govern what the defendant can do; it governs what the court can do," Weiss said. "The court after the lapse of 30 days may reduce a sentence. It doesn't matter in our view if the defendant filed before the 30 days is up or after the 30 days is up."

Winner's counsel did not immediately respond to a request for comment late Monday. A spokesman said the U.S. Department of Justice had no comment.

U.S. Circuit Judges Beverly B. Martin, Robert J. Luck and Andrew L. Brasher sat on the panel for the Eleventh Circuit.

Winner is represented by Baruch Weiss of Arnold & Porter, and Joe D. Whitley, Brett A. Switzer and Laura E. Collins of Baker Donelson Bearman Caldwell & Berkowitz PC.

The government is represented by Justin Davids and Bobby L. Christine of the U.S. Attorney's Office for the Southern District of Georgia.

The case is U.S. v. Winner, case number 20-11692, in the U.S. Court of Appeals for the Eleventh Circuit.

--Additional reporting by Carolina Bolado, Craig Clough and Jody Godoy. Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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