Nicole Defontes vs. Federal Bureau of Prisons, Case No. 09-22680-CIV-COOKE, Southern District of Florida

Daniel Scott Fridman

Case Conclusion Date:January 18, 2011

Practice Area:Criminal Defense

Outcome:The Court-ordered immediate release of Defontes, and a settlement of $300,000 for attorneys fees and damages.

Description:Nicole Defontes had just two months left in the Federal Bureau of Prisons early release program before she was set to be released. As part of the requirements of the early release program, she was living at a half-way house and working at The Treatment Center, a client of Holland & Knight. On August 10, 2009, U.S. Marshals arrested Ms. Defontes and charged her with failing her drug test and testing positive for opiates. She was taken to FDC-Miami. On September 10, 2009, Mr. Fridman filed a petition for a writ of mandamus and habeas corpus in the U.S. District Court in Miami. The case was assigned to Judge Marcia Cooke, who scheduled a hearing for October 7, 2009. Judge Marcia Cooke of the U.S. District Court for the Southern District of Florida scheduled a hearing for October 7, 2009. Mr. Fridman prepared a brief to the Court showing that Ms. Defontes’s drug test results were three times below the BOP cutoffs for finding a positive result, that Ms. Defontes’s due process rights were violated by the BOP, and asking for her immediate release. Judge Cooke held the hearing and at the end, she compared the BOP to a "gulag" and remarked that this is the kind of conduct we would call "Amnesty International" to investigate if it had happened in another country. Judge Cooke then ordered Nicole transferred out of the custody of the Bureau of Prisons and into the custody of the U.S. Probation Office so she could begin her supervised release. Mr. Fridman filed a Motion for Attorney’s Fees and Costs on October 30, 2010 claiming an entitlement to fees and costs under the Equal Access to Justice Act, under 28 U.S.C. § 1927, and under the Court’s own inherent authority. In the end, in January 2011, the Federal Bureau of Prisons settled with Nicole and her family for $300,000 (about 90% of her fees and costs) and wrote an extraordinary letter explaining the step it has taken to correct its due process problems.