By Jody Godoy

Law360 (April 13, 2020, 10:15 PM EDT) -- A 71-year-old Chinese real estate developer with heart disease and diabetes should not be released in the middle of his four-year bribery sentence simply because he is afraid of contracting the coronavirus, prosecutors told a New York federal court.

Ng Lap Seng asked U.S. District Judge Vernon Broderick last week to grant him compassionate release over the potential risk posed by the spread of the virus in federal prisons. The wealthy developer was convicted in 2017 of bribing United Nations officials to get them to support his plan to build an international conference center in Macau.

While acknowledging that Ng's age and ailments put him at higher risk of dying were he to contract COVID-19, the disease caused by the fast-spreading virus, prosecutors said in a memorandum of opposition filed Friday that his health conditions are under control. They added that there have so far been no confirmed coronavirus cases at the low-security prison in Allenwood, Pennsylvania, where he is serving his sentence.

Prosecutors asserted that Ng's line of argument would result in every prisoner with risk factors being released, regardless of the crime committed or how much of the sentence had been served.

"That is unfeasible, unwarranted, and not consistent with the public interest, the applicable statutory framework, or the purpose underlying the framework," prosecutors wrote.

Federal courts around the country are being bombarded with requests for compassionate release from prisoners who fear contracting the incurable and potentially fatal respiratory illness.

As of Monday, 388 federal inmates and 201 prison staffers had tested positive, and a handful among both those groups had recovered. Thirteen inmates have died.

Ng and others have sought to get around a provision in the criminal justice reform law known as the First Step Act that requires inmates seeking compassionate release to first ask the Bureau of Prisons, then wait 30 days for an answer, before posing the request to a court.

Prosecutors from the U.S. attorney's office in Manhattan and the U.S. Department of Justice's Fraud Section said there are "no exceptions" to the law's "unambiguous" requirement.

They pointed out that even in the case of terminally ill inmates seeking release, the law gives the BOP 14 days to process a request for compassionate release.

Ng had argued that a Second Circuit ruling last year allows plaintiffs to skip exhausting their administrative options in some circumstances, such as where fulfilling them would be futile.

 Prosecutors said that the Second Circuit case applies to "judge-made" requirements imposed by courts through case law, not those Congress expressed clearly in the law.  

The government also said that Ng's request to serve out the balance of his time under home confinement would be "effectively meaningless" since the penalty for a violation would be to send Ng back to prison along with the possibility that he was exposed to the virus in New York.

Ng's attorney Benjamin Brafman told Law360 on Monday that he was disappointed with the government's response.

"In this particular case, one would have hoped for a measure of reasonableness and even compassion. It is devoid of both," he said.

Ng is represented by Benjamin Brafman, Jacob Kaplan and Stuart Gold of Brafman & Associates PC.

The government is represented by Daniel C. Richenthal, Janis M. Echenberg and Douglas S. Zolkind of the U.S. Attorney's Office for the Southern District of New York and David A. Last of the DOJ's Fraud Section.

The case is U.S. v. Ashe et al., case number 1:15-cr-00706, in the U.S. District Court for the Southern District of New York.

--Editing by Jill Coffey.

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