Ponzi Schemer Can't Get Out Of Prison Over COVID-19 Risk

By Bill Wichert
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Law360 (June 22, 2020, 5:18 PM EDT) -- An ex-investment manager convicted of running a Ponzi scheme and stealing millions lost his bid to get out of prison due to the COVID-19 pandemic, with a New Jersey federal judge on Monday finding that the circumstances of his crimes were "particularly serious and involved a high level of deception."

U.S. District Judge Anne E. Thompson denied Vincent P. Falci's motion for compassionate release under the First Step Act, citing in part the seriousness of his offenses and the fact that he has only served one year of a 15-year prison term. The former fire chief requested a reduction in his sentence to time served or his release to home confinement.

The judge stressed that, for more than a decade, Falci "falsely portrayed himself as an experienced investment advisor and stole over $22 million from seniors, first responders, firefighters, and law enforcement associations." She also noted that his 15-year prison sentence was below the potential range under federal advisory sentencing guidelines.

"To now reduce this sentence even further, after defendant has only served one year of his sentence, would ignore the seriousness of the offense and create an 'unwarranted sentence [disparity] among defendants with similar records,'" said Judge Thompson, referring to one of the so-called Section 3553(a) factors to consider when imposing a sentence.

Falci was convicted at trial in December 2018 of wire fraud and securities fraud charges in connection with two investment vehicles he controlled, Saber Funds and Vicor Tax Receivables LLP. Judge Thompson sentenced him in May 2019.

Falci is scheduled to be released in March 2032, according to the federal Bureau of Prisons website.

Nearly a year after his sentencing, the 60-year-old Falci moved for compassionate release on April 27, claiming he has a history of medical conditions that "make him particularly vulnerable should he contract COVID-19."

Those conditions include "hypertension, high triglycerides, diverticulosis, diverticulitis, and chronic obesity," Falci said. He also has cited his age and noted that he had his gallbladder removed and his colon reconstructed, and that he had been a heavy smoker for 40 years.

Judge Thompson concluded, however, that Falci had not presented "extraordinary and compelling reasons" to warrant a sentence reduction under the First Step Act.

Of the conditions cited by Falci, the U.S. Centers for Disease Control and Prevention "has only identified severe obesity and pulmonary hypertension as illnesses that may put individuals at high risk for severe illness from COVID-19," the judge noted.

His body mass index as of Jan. 10 did not meet "the threshold of 'severe obesity' that the CDC has determined to be a high-risk factor," the judge said.

Falci's medical records also indicate that he is successfully managing his hypertension with medication and that "his risk of cardiovascular disease is still relatively low," the judge said. There's also no sign that Falci "suffers from pulmonary hypertension or any other 'serious heart condition' that the CDC has identified as a high-risk factor," the judge said.

"As for defendant's other medical conditions, defendant provides no support to show that these conditions increase the risk of complications from COVID-19," Judge Thompson said. "Although defendant was a regular smoker for many years, there is no indication that he suffers from a chronic lung disease."

Further, a defendant must be at least 65 years old to seek compassionate release based on age, the judge noted.

Falci also took aim at the conditions of the Fort Dix federal correctional institution in New Jersey where he is housed, saying they create "an unreasonable risk of exposure to COVID-19." As of May 19, the facility had 22 inmates who have tested positive for the novel coronavirus and 27 inmates who have recovered, court documents state.

Judge Thompson said it is "concerning that there are still active COVID-19 cases at FCI Fort Dix," but recognized that "the BOP has undertaken several mitigation measures to protect these inmates." Those measures include "face coverings for inmates and staff" and "screening newly admitted inmates," the judge said.

Since Falci "has not demonstrated a sufficiently heightened medical risk with respect to COVID-19, his concerns regarding the potential to contract COVID-19 are not unique among the FCI Fort Dix population," the judge added.

The government is represented by David W. Feder of the U.S. Attorney's Office for the District of New Jersey.

Falci is representing himself.

The case is USA v. Falci, case number 3:17-cr-00228, in the U.S. District Court for the District of New Jersey.

--Additional reporting by Lauren Berg. Editing by John Campbell.

For a reprint of this article, please contact reprints@law360.com.

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