By Bill Wichert

Law360 (October 30, 2020, 5:02 PM EDT) -- Two co-founders of a defunct public air charter operator who were convicted of stealing millions in passenger payments can't get out of prison over fears of contracting COVID-19 after a New Jersey federal judge found their "risk of serious illness or death is not substantially higher" simply because they're behind bars at certain facilities.

In separate opinions issued Thursday and Friday denying their respective bids for compassionate release under the First Step Act, U.S. District Judge Susan D. Wigenton said she is "sympathetic" to the medical concerns of Kay Ellison and Judy Tull but concluded that they failed to show "'compelling and extraordinary reasons'" to back their requests.

The judge noted that Ellison and Tull are receiving treatment for their medical conditions and pointed to the level of COVID-19 infections at the prisons where each woman is housed.

At Federal Prison Camp Alderson in West Virginia, where Ellison is located, two of the 757 inmates have tested positive, Judge Wigenton said. That positivity rate of roughly .0026% is "well under the current rate in West Virginia (4.0%), where FPC Alderson is located, and North Carolina (6.5%), where defendant wishes to reside in home confinement," the judge said.

The conditions at Federal Medical Center Carswell in Texas — where Tull is located and six inmates have died after contracting COVID-19 — are "concerning," the judge said.

But the judge said "the total inmate population is 1048 (with an additional 234 inmates at the adjacent minimum-security satellite camp), and as such, it does not appear that the facility is suffering from an uncontrollable outbreak of the virus."

Ellison, 60, and Tull, 75 — formerly the managing partner and CEO, respectively, of Southern Sky Air & Tours, which did business as Myrtle Beach Direct Air & Tours and was also known as Direct Air — are each serving a nearly eight-year prison sentence after being convicted at trial in 2018 of conspiracy, wire fraud and bank fraud charges.

Founded in 2006 and headquartered in Myrtle Beach, South Carolina, Direct Air booked airline reservations and arranged for charter flights with contracted carriers, offering charter services in Newark, New Jersey, and other cities, prosecutors said. The business filed for bankruptcy in March 2012.

U.S. Department of Transportation regulations required Direct Air to keep payments for future flights in an escrow account until the flights were completed in order to protect passengers financially, but Ellison and Tull duped a bank into releasing more funds than the business was entitled to, according to prosecutors.

The Third Circuit in February upheld their convictions and sentences. Ellison and Tull are both scheduled to be released in 2025, according to the Federal Bureau of Prisons website.

In their bid to get out of prison, the women claimed their medical ailments put them at an increased risk of becoming severely ill or dying if they contracted COVID-19, court documents state. Judge Wigenton was not persuaded.

Ellison cited her obesity, hypertension and weakened immune system, but the judge said Ellison's hypertension is being treated with medication and Bureau of Prisons staff "indicate that her condition is 'well controlled.'" Since obesity is considered a body mass index of 30 or higher and Ellison's is 30.3, "she is obese, but not severely so," the judge said.

Tull has pointed to her "age, asthma, cerebrovascular disease, hypertension, back pain and degenerative disk condition, vertigo, and inability to walk without assistance," according to the judge's opinion.

The Centers for Disease Control and Prevention "has not found that back pain or disk degeneration, vertigo or difficulty ambulating place individuals at increased risk," the judge said. Individuals with asthma, cerebrovascular disease and hypertension might be at an increased risk per CDC guidelines, but Tull is receiving treatment for those conditions, the judge said.

"It further appears that, despite defendant's age and medical issues, her condition has not 'substantially diminishe[d]' her ability 'to provide self-care within the environment of a correctional facility,'" Judge Wigenton said, citing Tull's medical records.

The judge also noted in both opinions that if each woman were to be granted release, she would have served "less than one-fourth of her 94-month sentence for crimes that involved the fraudulent misuse of over $19,000,000.00."

"Such a sentence would not 'reflect the seriousness [of the offense],' promote respect for the law, provide appropriate punishment for the offense, or protect the public by deterring others from similar future conduct," Judge Wigenton said in rejecting Tull's motion, citing the sentencing factors under federal statute 18 U.S.C. § 3553(a).

Counsel for Ellison and Tull declined to comment Friday. Matthew Reilly, a spokesman for the U.S. Attorney's Office for the District of New Jersey, said Friday the office declined to comment.

Ellison is represented by assistant federal public defender Rahul Sharma.

Tull is represented by assistant federal public defender Saverio A. Viggiano.

The government is represented by Assistant U.S. Attorneys Daniel S. Kahn, Cory E. Jacobs and Michael T. O'Neill.

The case is U.S. v. Tull et al., case number 2:15-cr-00622, in the U.S. District Court for the District of New Jersey.

--Editing by Daniel King.

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