By Emilie Ruscoe

Law360 (June 5, 2020, 11:04 PM EDT) -- DBSI's 71-year-old former corporate general counsel serving a five-year prison sentence for his role in a Ponzi scheme disguised as a real estate company will have to wait and see if the Bureau of Prisons finalizes its agreement to release him to home confinement amid the pandemic, a federal judge in Idaho said Thursday.

In a June 4 order, U.S. District Judge B. Lynn Winmill denied defendant Mark A Ellison's request for compassionate release, saying that it appeared he was in the final stage of securing his freedom via a separate process with the agency that runs the nation's federal prisons.

"Because it appears he will be released to home confinement on June 30, 2020, in any event, the court will deny the motion for compassionate release without prejudice to raise the motion again if his home confinement target date is delayed for any reason," Judge Winmill said Thursday.

But the judge noted that he would ask the prison to complete a release plan for the septuagenarian "as expeditiously as possible," noting that Ellison had been added to the prison's list of home confinement-eligible defendants on May 13.

And if Ellison's June 30 target release date were postponed, the judge said, Ellison was welcome to circle back with the judge to ask again for compassionate release via the courts.

Ellison sought compassionate release on May 20, telling Judge Winmill that he suffers from several health conditions that make him disproportionately likely to develop serious complications if he contracts the coronavirus.

In particular, Ellison's doctors told Judge Winmill, the elderly inmate has chronic kidney disease, hypertension, hyperlipidemia, high cholesterol and high blood pressure.

And Ellison's daughter, herself a doctor, was worried about swelling she noticed when she last visited her incarcerated father, and pointed to recent blood tests showing that he'd recently experienced a decline in kidney function.

Notwithstanding, Judge Winmill said, "Ellison's medical records from BOP show that his blood pressure, cholesterol, thyroid activity, and urine tests are all within normal limits and that his edema and cough have subsided."

"Ellison's age is a risk factor, as is his diminishing kidney function, but in overall terms he is in good health," he noted, adding that on Thursday, federal records indicated that there were not any COVID-19 cases at the medium-security Sheridan, Oregon, prison where Ellison is currently serving his 60-month sentence.

Ellison, the former general counsel of bankrupt real estate investment company DBSI Inc., was accused alongside some of the firm's other top executives in April 2013 of claiming that the company was profitable when it was actually using new investor funds to pay returns to other investors.

Ellison was found guilty of 44 counts of securities fraud in April 2014, court records show. He appealed several times, so he didn't start the prison sentence until July 10, 2018, and has currently served about 23 of the 60 months he was sentenced to. Federal prison records show his projected release date prior to the current deliberations was Oct. 11, 2022.

Prosecutors told Judge Winmill not to agree to Ellison's compassionate release, but did not object to the defendant getting out via the BOP's own system.

An attorney for Ellison and a representative for the government did not immediately respond to requests for comment Friday.

Ellison is represented by David Z. Nevin of Nevin, Benjamin, McKay & Bartlett LLP.

The government is represented by Bart M. Davis, Raymond E. Patricco and Justin D. Whatcott of the U.S. Attorney's Office for the District of Idaho.

The case is USA v. Swenson et al., case number 1:13-cr-00091, in the U.S. District Court for the District of Idaho.

--Additional reporting by Stewart Bishop. Editing by Michael Watanabe.

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