By Brian Dowling

Law360 (May 13, 2020, 3:48 PM EDT) -- Weighing an imprisoned hedge fund fraudster's bid for home confinement due to the coronavirus pandemic, a Massachusetts federal judge on Wednesday proposed taking up a new professional oath when considering such compassionate release requests: "First, do no harm."

U.S. District Judge Douglas P. Woodlock outlined the idea during a hearing to consider a home confinement request by Yasuna Murakami, who is currently serving a six-year term in a Brooklyn prison after pleading guilty to a Ponzi-style fraud that took $10.5 million from investors.

Murakami, who is asking to stay with family in New Hampshire, contends that his hypertension condition means he's six times more likely to die if infected with COVID-19, which has spread at Metropolitan Detention Center, Brooklyn. Prosecutors have opposed the request, noting that high blood pressure is common among many people who have died of the virus but the data doesn't show anything beyond mere correlation. They also say the move could pave the way for a full-scale release of nonviolent criminals.

Judge Woodlock said Wednesday his decision was complicated by the presently unknowable questions about the extent to which Murakami's hypertension makes him vulnerable to the deadly virus sweeping through jails and prisons.

"We have something that has some comorbidity, in which there is active discussion in medical literature," Judge Woodlock said. "Perhaps taking a different oath for a different profession than that of the legal profession — first, do no harm — that's the kind of approach that I'm taking or I'm thinking about as a way to deal with restraints on ordinary judicial evaluation that we now face."

Waiting to act could have serious consequences, the judge suggested.

"So do we sit on our hands, pending the time ... when it is possible to have a hearing?" Judge Woodlock said. "And what's the risk of sitting on our hands in that period?"

Jordi de Llano of the U.S. Attorney's Office for the District of Massachusetts said six inmates at MDC Brooklyn have come down with COVID-19 and are listed as recovered from the virus, while 17 workers there have tested positive. Conditions at the facility are the subject of a proposed class action brought on behalf of vulnerable inmates like Murakami for release; a recent self-audit of the facility by a Federal Bureau of Prisons official found conditions had improved from what the inmates' expert reported. 

Judge Woodlock offered a possible solution during the hearing: ordering Murakami released to home confinement and allowing the government to appeal the decision to the First Circuit. Murakami could be brought back to custody if the appeals court disagrees, the judge said.

Calling release pending appeal "the functional equivalent of a furlough," the judge said it would accomplish his goal of doing no harm without giving Murakami a get out of jail free card. If he is brought back to jail on the appeal, he would get no credit for the time served in home confinement, the judge said.

Murakami's lawyer, Seth B. Orkand, said that the proposed setup would have his client serve more time in home confinement than he would in prison because he'd be unable to participate in a program to reduce his sentence.

The judge did not make a ruling and took the issue under advisement.

Murakami, who was banned from the securities industry for life, pled guilty in January 2018 to one count of wire fraud for misappropriating a $1 million investment in 2013, a fraction of a larger scheme to divert millions of investor dollars to his bank account and that of a business partner who was not charged.

Murakami took money from individual and corporate investors from May 2011 through December 2016, prosecutors have said, and promised them he would invest it with a "highly sought-after" firm. In fact, he deposited it in his own business and personal accounts and used some of it to repay earlier investors who inquired about their money, the government has alleged.

The government is represented by Jordi de Llano of the U.S. Attorney's Office for the District of Massachusetts.

Murakami is represented by Seth B. Orkand and Megan A. Siddall of Miner Orkand Siddall LLP.

The case is U.S. v. Murakami, case number 1:17-cr-10346, in the U.S. District Court for the District of Massachusetts.

--Additional reporting by Chris Villani. Editing by Steven Edelstone.

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