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United States v. Zukerman

United States District Court for the Southern District of New York

April 3, 2020, Decided; April 3, 2020, Filed

16 Cr. 194 (AT)

Opinion

ORDER

ANALISA TORRES, District Judge:

Morris E. Zukerman, a prisoner serving his sentence at FCI Otisville ("Otisville"), moves for a reduction of his term of imprisonment under the federal compassionate release statute, codified at 18 U.S.C. § 3582(c)(1)(A). Def. Letter, ECF No. 112. He asks that he be "transferred to supervised release with a special condition of home confinement for the duration of his sentence." Id. at 1. For the reasons stated below, Zukerman's motion is GRANTED only to the extent that his sentence is modified such that his remaining term of imprisonment is replaced by an equal period of home incarceration.

BACKGROUND

On June 27, 2016, Zukerman pleaded guilty to one count of tax evasion and one count of corruptly endeavoring to obstruct and impede the due administration of the internal revenue laws in violation of 26 U.S.C. §§ 7201 and 7212(a). See June 27, 2016 ECF entry. On March 21, 2017, the Court sentenced him to 70 months of incarceration followed by one year of supervised release. [*2]  ECF No. 58. The Court also imposed a fine of $10,000,000 and ordered that $37,574,951.88 be paid in restitution. Id.; see also ECF No. 59. Zukerman surrendered to Otisville on June 26, 2017, and he has paid the fine and restitution in full. Def. Letter at 1-2; ECF No. 109. Because Zukerman began serving his sentence on June 26, 2017, "he was originally scheduled to be released in July 2022." Gov't Opp. at 1, ECF No. 114. Both parties acknowledge, however, that under the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), Zukerman's term of imprisonment could be reduced, meaning that Zukerman could be released to home confinement as early as May 2021. Def. Letter at 2; Gov't Opp. at 4.

Zukerman is 75 years old and suffers from diabetes, hypertension, and obesity. Def. Letter at 1. He is currently serving his sentence at Otisville, where, as of March 27, 2020, at least one inmate has tested positive for COVID-19. Id.; see also COVID-19 Tested Positive Cases, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/. At Otisville, "120 inmates eat elbow-to-elbow at the same time, share one large bathroom with a handful of stalls and a handful of showers, and sleep together in bunks beds only a few feet apart that are divided principally between two [*3]  dormitories (as opposed to individual cells)." Def. Letter at 3. "The two dormitories are separated only by the shared bathroom." Id. According to Zukerman, "[t]here is no place to self-isolate." Id. On March 31, 2020, the Federal Bureau of Prisons (the "BOP") directed that inmates in all institutions be confined to their cells for 14 days "to decrease the spread of the virus." Bureau of Prisons COVID-19 Action Plan: Phase Five (Mar. 31, 2020), https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp. At Otisville, however, there are no cells. Def. Reply at 3 n.2. Inmates, therefore, are quarantined to their dormitories and common areas. Id. Zukerman's doctor, Timothy Dutta, M.D., writes that, based on the Centers for Disease Control and Prevention (the "CDC") guidelines for COVID-19, Zukerman is in "the highest risk category for complications and death from the disease." See Dutta Letter, ECF No. 112-2.

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2020 U.S. Dist. LEXIS 59588 *

UNITED STATES OF AMERICA, -against- MORRIS E. ZUKERMAN, Defendant.

Prior History: United States v. Zukerman, 710 Fed. Appx. 499, 2018 U.S. App. LEXIS 2853 (2d Cir. N.Y., Feb. 6, 2018)

CORE TERMS

sentence, exhaustion, disease, compelling reason, compassionate, required to exhaust, diabetes, inmates, modify, BOP, term of imprisonment, conditions, administrative process, medical condition, suffering, waived, supervised release, severe illness, complications, incarceration, hypertension, coronavirus, quotation, reduction, pandemic, obesity, https, marks, CDC