By Jody Godoy

Law360 (April 22, 2020, 6:03 PM EDT) -- Former pharmaceutical executive Martin Shkreli sought to get out of prison for securities fraud on Wednesday, telling a federal judge that he'll be both safer from the novel coronavirus and able to develop treatments from home confinement.

Shkreli, 37, asked U.S. District Judge Kiyo Matsumoto to modify his seven-year sentence and allow him to serve his time in home confinement in Manhattan with an unnamed fiancée. He is currently scheduled to be released from a low-security prison in Pennsylvania in 2023.

The request puts the former executive among a growing number of inmates seeking to modify their sentences as the novel coronavirus continues to spread behind bars. As of Wednesday, 566 federal inmates and 342 prison staff had tested positive, according to the Bureau of Prisons. FCI Allenwood Low, where Shkreli is incarcerated, has not yet confirmed any cases.

Shkreli's attorneys said in their filing that it is only a matter of time before the novel coronavirus strikes his facility. They argued he is at increased risk of contracting the virus in part because he suffers from allergies, which prompt him to touch his face. They also cited Shkreli's asthma as a factor.

In addition, his attorneys told the judge that Shkreli has "devoted countless hours" to researching a potential cure for COVID-19, the disease caused by the virus, while in prison and that releasing him to home confinement would allow him to better pursue that endeavor.

"To be clear, his work is at a preliminary stage. However, Mr. Shkreli is not coming at COVID-19 as a novice in this world," his attorneys wrote.

Shkreli was convicted in 2017 of lying to investors in his hedge funds and conspiring to control the price of shares in what was then his biotech firm, Retrophin Inc. The company developed treatments for rare diseases.

Before he was charged, Shkreli came under fire for raising the price of a Turing Pharmaceuticals drug used by HIV patients by hundreds of dollars. His attorneys defended the move in Shkreli's sentencing papers as a business decision that provided research funds.

In early April, Shkreli released a four-page paper outlining a potential treatment for COVID-19 on the website of a company called Prospero Pharmaceuticals.

The paper was co-authored by Shkreli's former employees Maureen Lohry and James Rondina, his business partner and former Turing Pharmaceuticals executive Kevin Mulleady, and Jason Sommer, who is listed on the paper as a citizen scientist.

"I do not expect to profit in any way, shape or form from coronavirus-related treatments," Shkreli said in a statement included in the paper. "I believe any company developing a coronavirus drug should seek to recoup its cost at most and be willing to perform the work as a civil service at the least."

Shkreli's attorneys told Judge Matsumoto on Wednesday that a Chinese pharmaceutical company is "preparing to contract with Prospero to conduct development testing and clinical trials" based on the research in the paper.

The motion indicated that WuXi Biologics was involved, though a spokesman for the company said on Thursday that it has had no contact with Prospero Pharmaceuticals. Shkreli attorney Marc Agnifilo said that individuals at WuXi AppTec, the former parent company of WuXi Biologics, have been in contact regarding Shkreli's research.

Davy Wu, a representative for WuXi AppTec said on Friday that the company receives inquiries daily from potential customers seeking its health research and development and manufacturing services.

"We recently received such an inquiry from a representative of Prospero Pharmaceuticals, and we engaged in a customary confidentiality agreement to conduct [a] preliminary introductory discussion," Wu said.

Shkreli's filing also offered a glimpse into how the BOP is handling the deluge of requests for home confinement from prisoners with underlying health conditions and the narrow criteria being used.

According to Shkreli's motion, his application for home confinement was denied on April 14 after he was told he did not meet the eight criteria the BOP developed based on guidance from Attorney General William Barr.

Those convicted of violent offenses, terrorism and sex crimes are ineligible, as are inmates who require a high level of mental health care, those who are under a detainer, and those who have been involved in a recorded incident in prison in the past year.

In addition, only those with certain low scores under two BOP risk assessment rubrics are eligible for home release, according to the filing.

In Shkreli's case, his application was denied because the Prisoner Assessment Tool Targeting Estimated Risk and Needs, or PATTERN, pegged him at "low" risk of reoffending instead of "minimum."

Prosecutors have opposed many, though not all, motions similar to Shkreli's. A spokesman for the U.S. Attorney's Office for the Eastern District of New York declined to comment on Wednesday.

The government is represented by Claire S. Kedeshian, Laura D. Mantell and Thomas R. Price of the U.S. Attorney's Office for the Eastern District of New York.

Shkreli is represented by Benjamin Brafman, Marc A. Agnifilo, Andrea L. Zellan, Jacob Kaplan and Teny Geragos of Brafman & Associates PC.

The case is U.S. v. Shkreli et al., case number 1:15-cr-00637, in the U.S. District Court for the Eastern District of New York.

--Editing by Amy Rowe.

Update: This story has been updated to clarify a reference to WuXi Biologics in Shkreli's filing and to add a statement from WuXi AppTec.

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