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February 24, 2003


The opinion of the court was delivered by: Gladys Kessler, District Judge


Plaintiff, Zalmen Ashkenazi, challenges his re-designation by the Bureau of Prisons ("BOP") to a Federal Prison Camp rather than the Community Corrections Center ("CCC" or "halfway house") to which he was originally designated. Plaintiff contends that the re-designation violates the Ex Post Facto Clause of the Constitution. On January 22, 2003, the Court appointed the Federal Public Defender for the District of Columbia as amicus curiae. Defendants are the Attorney General of the United States and the Director of the BOP.

This matter is now before the Court on Plaintiff's Motion for a Preliminary Injunction. Upon consideration of the Motion, Opposition, Reply, the arguments presented at the motions hearing on February 10, 2003, and the entire record herein, for the reasons stated below, Plaintiff's Motion for a Preliminary Injunction is granted.


On January 31, 2001, Plaintiff was charged in a four-count indictment in the United States District Court for the Southern District of New York with conspiracy to commit bank fraud, 18 U.S.C. § 371, and bank fraud, 18 U.S.C. § 1344. The offense, which involved $133,999 in "kited" certified checks, was committed between December 1997 and February 1998.

The prosecutor offered Plaintiff a plea bargain under which he would be sentenced as a Level 13 offender but would agree not to seek a downward departure. Plaintiff accepted this plea offer, which placed him in "Zone D" of the Sentencing Guidelines. Plaintiff pled guilty to the conspiracy count of the indictment on May 30, 2002.

At the time Plaintiff accepted the plea offer and pled guilty, and during the seventeen years preceding his plea, the BOP could, in its discretion, designate defendants who were in Zones C or D of the Sentencing Guidelines, such as Plaintiff, to serve their full sentences, or any portions thereof, in a CCC rather than a federal prison. Plaintiff was advised of this well-established policy by his attorney, an experienced New York City criminal defense lawyer, and accepted the plea offer with the expectation that the BOP would use its discretion to determine whether he should serve his sentence in a halfway house.

Plaintiff was sentenced on October 15, 2002. The Probation Office recommended to the sentencing judge that Ashkenazi serve four months, and that the full sentence be served in a CCC. As justification for this recommendation, the Probation Office relied on Ashkenazi's lack of criminal history, his "instrumental" role in caring for his wife, who "suffered life threatening injuries in a car accident . . . [for which] she still has to undergo surgery," and in easing the burden on his wife by caring for their children. Presentence Investigation Report in United States v. Ashkenazi, S.D.N.Y., No. 01 CR 796 (SHS), dated August 20, 2002, P1. Ex. 1 at 21. The judge sentenced Plaintiff to twelve months and one day of imprisonment, and recommended to the BOP that he serve seven months of that sentence in a CCC. On December 6, 2002, the BOP instructed Ashkenazi to surrender to the Brooklyn CCC for service of his sentence.*fn1 He did so, as directed, on December 16, 2002.

On that same day, the Deputy Attorney General advised the BOP that its long-standing policy of interpreting the term "imprisonment" to encompass CCCs was unlawful, and that it no longer possessed the discretion to designate Zone C and D offenders to CCCs. In addition to applying this policy prospectively, the BOP was directed to "transfer to an actual prison facility all federal offenders currently residing in a CCC who, as of [December 16, 2002], have more than 150 days remaining on the imprisonment component of their sentence." Dec. 16, 2002 Memorandum from Larry D. Thompson to Kathleen Hawk Sayer.

Pursuant to this directive, Ashkenazi was advised on December 23, 2002 that he would be re-designated to a federal prison. On January 10, 2003, he was told to report to the Federal Prison Camp at Fort Dix, New Jersey on January 24, 2003.

On January 16, 2003, Plaintiff filed Motions for a Temporary Restraining Order and for a Preliminary Injunction, seeking to temporarily and permanently enjoin Defendants from re-designating and transferring him from the Brooklyn CCC to the Federal Prison Camp at Fort Dix, or to any other "prison or jail institution." Compl. at 6. Pursuant to an agreement between the parties to facilitate briefing and consideration of the Motion for a Preliminary Injunction, the BOP agreed to defer the date of Plaintiff's transfer until February 24, 2003,*fn2 and the parties withdrew the Motion for a Temporary Restraining Order.*fn3

On February 3, 2003, Defendants filed a Motion to Dismiss, alleging that Plaintiff failed to exhaust his administrative remedies, and that the application to Plaintiff of BOP's new policy does not violate Plaintiff's right to due process under the Fifth Amendment, principles of equitable estoppel, nor the Eighth Amendment's prohibition against cruel and unusual punishment. On February 7, 2003, the Federal Public Defender, as amicus curiae, filed a Memorandum in Support of Plaintiff's Application for a Preliminary Injunction and an Order in the Nature of Mandamus, contending that BOP's policy change contravenes Congress' statutory directive, misinterprets the Sentencing Guidelines, and violates Plaintiff's right to due process, equal protection, principles of equitable estoppel, the Ex Post Facto Clause, and the Administrative Procedure Act.*fn4


The District of Columbia applies a traditional four-part test for determining whether to grant a request for a preliminary injunction. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-12 (1982); National Wildlife Federation v. Burford, 835 F.2d 305 (D.C. Cir. 1987). The movant must establish that (1) he has substantial likelihood of success on the merits; (2) he would suffer irreparable injury if the injunction is not granted; (3) an injunction would not substantially injure other interested parties; and (4) the public interest would be furthered by the injunction. Dodd v. Fleming, 2002 U.S. Dist. LEXIS 16383 (D.C. Cir. 2002)

A. Plaintiff Has a Substantial Likelihood of Success on the Merits of the Ex Post Facto Claim

Plaintiff's principal argument in support of his Motion for a Preliminary Injunction is that the retroactive application of the new BOP policy violates the Ex Post Facto Clause of the Constitution.*fn5 The Supreme Court has explained that the presumption against the retroactive application of new laws is "an essential thread in the mantle of protection that the law affords the individual citizen. That presumption is "deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.'" Lynce v. Mathis, 519 U.S. 433, 439 (1997) (quoting Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994)).

The specific prohibition on ex post facto laws is one aspect of the "broader constitutional protection against arbitrary changes in the law." Id. at 440. To fall within the ex post facto prohibition, a law must be "retrospective — that is, "it must apply to events occurring before its enactment' — and it "must disadvantage the ...

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