During a telephone hearing, U.S. District Judge Katharine S. Hayden denied the release request from George Dfouni, who is serving a nearly four-year prison sentence for wire fraud and tax evasion. The judge cited Dfouni's medical condition as well as the measures taken by the Federal Bureau of Prisons to protect the health of inmates during the crisis.
The 49-year-old Dfouni has failed to show he is "at risk of severe illness or death," according to the judge.
"That particular piece, coupled with what I believe is a credible response on the part of the Bureau of Prisons that is becoming all the more aggressive from the latest information we have, pretty much constrain my ability ... to grant this application," Judge Hayden said.
Pointing to the Third Circuit's April 2 precedential ruling in U.S. v. Raia
, the judge noted that "the pandemic, standing alone, doesn't provide a reason for compassionate release.""A condition like hypertension has not been found by any medical criteria to, standing alone, suggest that, should the person suffering from hypertension contract the virus, that he or she will suffer severe illness or death," Judge Hayden added.
The former chief operating officer of an unnamed New York-based hospitality company, Dfouni filed his motion on April 2, arguing that the Lewisburg, Pennsylvania, facility where he is locked up is "ill-equipped to contain the pandemic and prevent COVID-19 from becoming a de facto death sentence" for him. He sought to be released to home confinement.
Dfouni's attorney, assistant federal public defender Peter M. Carter, then informed the judge in an April 13 letter that the Bureau of Prisons had granted his release request, and asked that his motion be held in abeyance. Two weeks later, Dfouni reinstated the motion after the bureau rescinded its approval, according to an April 27 letter to the judge from Carter.
During Monday's hearing, Carter cited Dfouni's hypertension — and provided blood pressure readings — in urging the judge to let him out of prison.
"I think that his high blood pressure is a relevant factor which would at least make him eligible and the court could find that his high blood pressure is an extraordinary and compelling reason, in conjunction, of course, with the COVID-19 epidemic," Carter said.
But Assistant U.S. Attorney Dean C. Sovolos pointed out that a doctor evaluated Dfouni at the prison and concluded that he "does not have a significant risk associated with COVID-19."
Judge Hayden also cited that medical evaluation in handing down her decision, saying she did not find that "any of the defendant's information that's been presented changes that evaluation, that conclusion insofar as he is showing readings, blood pressure readings, that are in the nature of something other than fairly good control of his hypertension."
The judge added that "the medical records show a responsiveness on Mr. Dfouni's part to the prescribed medications that are meant to control his hypertension."
As for the prevention measures at the Lewisburg facility, Judge Hayden said, "There seems to be a lot going on at that particular facility in an effort to keep it where — at least it was last week — and that is free from inmate infection."
The judge also said she had to take into account the Bureau of Prisons' "more aggressive testing policy ... if in fact we're moving from screening to testing asymptomatic folks."
Between 1996 and 2015, Dfouni served as chief operating officer for the hospitality business, which owns and operates hotels in New York and New Jersey, prosecutors said.
From 2007 to September 2015, Dfouni negotiated contracts on the company's behalf with two other businesses that leased New York hotel properties from his then-employer, prosecutors said. Dfouni arranged for the other businesses to send their payments directly to him, and each contract included a signing bonus for him, prosecutors said.
While he was expected to keep his signing bonus and turn over the remaining dollars to his then-employer, Dfouni pocketed a portion of the money owed to the company to support his gambling expenses and lavish lifestyle, prosecutors said. He embezzled a total of $13.8 million from the business, prosecutors said.
Between 2007 and 2014, Dfouni also failed to report roughly $27.7 million in income to the IRS, including the money he stole from the company, prosecutors said.
After pleading guilty to the charges, Dfouni was sentenced in October 2018 to almost four years in prison. He is scheduled to be released in April 2022, according to the Bureau of Prisons website.
The government is represented by Dean C. Sovolos of the U.S. Department of Justice's Criminal Division.
Dfouni is represented by assistant federal public defender Peter M. Carter.
The case is U.S. v. Dfouni, case number 2:18-cr-00028, in the U.S. District Court for the District of New Jersey.
--Editing by Adam LoBelia.
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