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Law360 (April 28, 2020, 11:56 PM EDT) -- An ex-Jenkens & Gilchrist PC lawyer imprisoned for orchestrating a $7 billion tax fraud scheme urged a New York federal judge Tuesday to reject the federal government's opposition to his compassionate release bid over COVID-19, arguing new studies show widespread infection rates among prisoners even if many are asymptomatic.
Paul Daugerdas' attorneys said the government's opposition to his request to serve the rest of his 15-year sentence from home in light of his age and medical conditions did not give the complete picture about how the coronavirus pandemic is impacting the country's prisons.
Just because his federal correctional facility in Illinois has no confirmed COVID-19 cases does not mean he is safer there than under home confinement, Daugerdas' lawyers said while pointing to several recent COVID-19 studies conducted at prisons and highlighted by Reuters and The Marshall Project.
"This data critically undermines the government's contention that because there are no confirmed cases of COVID-19 at USP Marion, Mr. Daugerdas is safer in the prison than he would be under conditions of home confinement," Daugerdas' attorneys Henry E. Mazurek and Ilana Haramati of Meister Seelig & Fein LLP said in a letter to U.S. District Judge William H. Pauley.
Daugerdas, 69, petitioned the judge on April 13 to allow him to serve the remainder of his sentence under home confinement, arguing his diabetes makes him more susceptible to the effects of the novel coronavirus. He also says he has high blood pressure and elevated cholesterol.
Daugerdas is serving his time in a low-security prison in southern Illinois that has no active and few surrounding cases of the coronavirus, prosecutors told Judge Pauley last week. But he'd be released to live in an area with numerous COVID-19 cases, alongside his wife, who works as a nurse at a hospital treating numerous positive patients, they argued.
Daugerdas' proposal to let his wife help keep him safe as part of his release plan "would actually put him in greater peril of COVID-19 infection" than if he continued serving his sentence in the prison, prosecutors said.
The letter sent to the judge by Daugerdas' attorneys said the referenced news stories showed that at Marion Correctional Institution in Ohio, 2,028 of 2,300 inmates tested had the coronavirus, but 95% of the positive cases had no symptoms, and at North Carolina's Neuse Correctional Institution, 65% of 700 inmates tested positive but 98% of the positive cases has no symptoms.
"The Federal Bureau of Prisons has persistently refused to test asymptomatic inmates," the attorneys said in the letter. "These reports of widespread COVID-19 infection in prisons performing widespread testing clarify that the absence of positive test results in USP Marion indicates only an absence of testing, not an absence of infection."
Daugerdas was one of several individuals ensnared in a wide-ranging tax evasion investigation focused on Jenkens & Gilchrist, a once-proud Texas law firm that was forced to shut its doors in 2007 following a nonprosecution deal with the government.
Daugerdas was convicted on conspiracy, tax evasion, impeding Internal Revenue laws and mail fraud charges in 2013 and has been incarcerated since 2014. He was initially convicted in 2011, but Judge Pauley nixed that verdict after finding a woman lied about her failed legal career and hid her husband's criminal background to get selected as a juror.
Counsel for the government and Daugerdas did not immediately respond Tuesday to a request for comment.
The government is represented by Stanley J. Okula Jr. of the U.S. Attorney's Office for the Southern District of New York.
Daugerdas is represented by Henry E. Mazurek and Ilana Haramati of Meister Seelig & Fein LLP.
The case is U.S. v. Daugerdas et al., case number 1:09-cr-00581, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Lauraann Wood. Editing by Bruce Goldman.
For a reprint of this article, please contact reprints@law360.com.
