United States v. Ng Lap Seng

• Decision Date: 08 May 2020
• Docket Number: S5 15-CR-706 (VSB)
• Citation: 459 F.Supp.3d 527
• Parties: UNITED STATES of America, v. NG LAP SENG, Defendant.
• Court: U.S. District Court — Southern District of New York

459 F.Supp.3d 527

UNITED STATES of America,

v.NG LAP SENG, Defendant.

S5 15-CR-706 (VSB)

United States District Court, S.D. New York.

Signed May 8, 2020

Daniel Charles Richenthal, Janis Echenberg, Douglas Samuel Zolkind, United States Attorney's Office, Rahul Mukhi, Cleary Gottlieb Steen & Hamilton LLP, Robert D. Balin, Davis Wright Tremaine LLP, New York, NY, David A. Last, Department of Justice, Criminal Division, Fraud Section, Washington, DC, for United States of America.

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:

Before me is the motion of Ng Lap Seng ("Defendant" or "Ng") pursuant to 18 U.S.C. § 3582 (c)(1)(A) "for an order granting [him] ‘compassionate release’ and directing him to serve the remainder of his prison sentence in home confinement ... or, alternatively, for an order recommending that the Federal Bureau of Prisons ("BOP") grant his § 3582(c)(1)(A) petition." (Ng Comp. Rel. Mem.)¹ Ng states that there are extraordinary compelling reasons justifying compassionate release presented by "the recent coronavirus disease (COVID-19) pandemic, the high risk of infection within federal prisons, and Ng's advanced age and serious underlying medical conditions," which make it "likely that he will soon contract the virus and become critically ill or die from it." (Id. at 1.) Because Ng has not exhausted his administrative remedies and, in any event, I find that he has not met his burden of establishing that there exist extraordinary and compelling reasons to reduce his sentence and grant his release, Defendant's motion for compassionate release is denied without prejudice.

I. Background and Procedural History ²

After initially being charged in a sealed complaint on October 5, 2015, Ng and his co-defendants were charged in an indictment on October 20, 2015. On June 30, 2016, Superseding Indictment S4 15 Cr. 706 (the "S4 Indictment") was filed against Ng and others, charging Ng with bribery, money laundering, and conspiracies to commit bribery and money laundering. (Doc. 211.) The S4 Indictment charged that from 2011 through September 2015, Ng and others engaged in an international bribery and money laundering scheme to, among other things, bribe John Ashe³ ("Ashe")—the former Ambassador to the United Nations ("UN") from Antigua and Barbuda and President of the UN General Assembly ("UNGA")—to obtain official actions benefitting Ng's interests in certain business opportunities, including the construction of a multi-billion dollar conference center in Macau, China (the "Macau Conference Center"). (See id. ¶¶ 1, 4–5, 14.) It further charged that Ng continued this scheme after Ashe left the UN in December 2014 by providing benefits to one or more officials at the United Nations Development Programme ("UNDP") in exchange for further support for the Macau Conference Center. (Id. ¶ 9.)

On November 22, 2016, the Government filed Superseding Indictment S5 15 Cr. 706 (the "S5 Indictment"). (S5 Ind.)⁴ In addition to the previous charged offenses, the S5 Indictment added three counts against Ng alleging that he violated and conspired to violate the Foreign Corrupt Practices Act ("FCPA"). (Id. ¶¶ 1–22, 24–27.) It also included allegations about the United Nations Office for South-South Cooperation ("UNOSSC"), "an office within UNDP that focuses on issues related to cooperation among developing countries." (Id. ¶ 4.) According to the S5 Indictment, since 2008, "UNOSSC has run an annual ‘Global South-South Development Expo’ (the ‘UNOSSC Expo’), hosted in a different country or city each year." (Id. ) The S5 Indictment also added allegations concerning Ng's international bribery and money laundering scheme. For example, the S5 Indictment alleged that Ng's "principal objective ... was to obtain official action from the UN with respect to a multi-billion dollar conference center that NG hoped to build in Macau, China ... using his company." (Id. ¶ 11.) In particular, Ng sought "Formal UN Support" for the Macau Conference Center, which was defined to include the "establish[ment] [of] the Macau Conference Center as the permanent site of the annual UNOSSC Expo and as a location for other meetings, forums, and events associated with the UN."⁵ (Id. )

The S5 Indictment alleged that, to carry out his objective, Ng paid bribes to Francis Lorenzo, the Deputy Permanent Representative to the UN for the Dominican Republic from 2004 up to and including October 2015, in addition to Ashe. (Id. ¶ 9.) During the time period that Ashe served as UNGA President, Lorenzo served as a Special Adviser to the UNGA President. Ng paid these bribes to Ashe and Lorenzo "for the purpose of obtaining official action for the benefit of NG and his company, as opportunities arose, by each of the Ambassadors, and for the purpose of having the Ambassadors influence, exert pressure on, and advise other UN officials and diplomats, including the UN Secretary-General, intending for those officials and diplomats to take official action, as opportunities arose, to advance the interests of Ng and his company," and to "to reward [Ashe and Lorenzo for] their efforts to take, and to influence other UN officials and diplomats to take, official action for the benefit of NG and his company." (Id. ¶ 10.)

Trial commenced on June 26, 2017. On July 27, 2017, more than a month after trial began, the jury convicted Ng on all counts of the S5 Indictment, including bribery, money laundering, violations of the FCPA, and conspiracies to commit bribery, money laundering, and violations of the FCPA. (See Doc. 572; Tr. 4336:22-4337:19.) Ng's Sentencing Guidelines range was 235 to 293 months’ imprisonment, (Doc. 843, at 32:3-34:5), and on May 11, 2018, I sentenced Ng to 48 months’ imprisonment, a substantial variance. After a series of letters requesting adjournment of his self-surrender date and a hearing related to various medical issues purportedly related to his request to adjourn his surrender date, (see e.g. , Docs. 793, 825, 820, 828, 829, 831, 832, 853), on July 17, 2018, I ordered that Ng surrender to his designated facility on July 18, 2018 at 12:00 p.m. (Doc. 389.) Ng's scheduled release date is December 23, 2021. Find an Inmate , Fed. Bureau of Prisons (last visited April 28, 2020), https://www.bop.gov/inmateloc/. Since being ordered to surrender on July 18, 2018, Ng has been serving his sentence at the Allenwood Low Security Federal Correctional Institution ("FCI Allenwood Low") in White Deer, Pennsylvania.⁶

On May 31, 2018, Defendant filed a Notice of Appeal, (Doc. 784), and an Amended Notice of Appeal was filed on June 8, 2018, (Doc. 785). Ng's motion for bail pending appeal was denied on June 28, 2018. (Doc. 803.) Defendant's appeal was denied on August 9, 2019, and a Mandate issued on October 24, 2019, (Doc. 911).

Ng filed his emergency motion for compassionate release on April 6, 2020. (Doc. 934.) An amended motion was filed on April 8, 2020, (Doc. 935), and the Government filed its opposition on April 10, 2020, (Doc. 936). Ng filed his reply on April 13, 2020, (Doc. 937), and the Government filed a memorandum in further opposition on April 14, 2020, (Doc. 938). On April 17, 2020, Ng filed a supplemental letter concerning exhaustion, (Doc. 944), and the Government filed a supplemental letter concerning exhaustion, (Doc. 945). On April 20, 2020, Ng filed another supplemental letter related to the exhaustion issue. (Doc. 946.) Ng filed a letter on April 26, 2020, asserting that "[t]he 30-day clock has now expired, rendering the exhaustion issue moot." (Doc. 948.) By Order filed on April 28, 2020, I requested the Government "confirm by close of business on April 28, 2020, that the Federal Bureau of Prisons has taken no action on Defendant's request for compassionate release, and that I am therefore free to address the substance of Defendant's motion for compassionate release." (Doc. 949.) The Government responded that the BOP had denied Defendant's request for compassionate release by letter dated April 20, 2020, and informed me that I have "authority to reach the substantive merits of the defendant's motion starting ... 30 days from March 30" when Defendant filed his request for compassionate release with the BOP. (Doc. 950, at 1 & n.1.)

II. Discussion

Defendant seeks an order "granting [him] ‘compassionate release’ and directing him to serve the remainder of his prison sentence in home confinement ... or, alternatively, for an order recommending that the [BOP] grant his § 3582(c)(1)(A) petition that was mailed and faxed to the BOP on March 27, 2020."⁷ (Ng Comp. Rel. Mem. 1.) Ng asserts that "[g]iven the recent coronavirus disease (COVID-19) pandemic, the high risk of infection within federal prisons, and Ng's advanced age and serious underlying medical conditions, it is likely that he will soon contract the virus and become critically ill or die from it," and therefore that "there are ‘extraordinary and compelling reasons’ for allowing Ng to serve the remainder of his prison sentence in home confinement." (Id. )

In opposition, the Government argues that: (1) Defendant has not exhausted his administrative remedies; (2) Defendant failed to "demonstrate that he, personally and individually, falls into the narrow band of inmates for whom ‘extraordinary and compelling reasons’ warrant immediate and permanent release"; and (3) even if Defendant had exhausted his administrative remedies and met his burden to establish an extraordinary and compelling reason, he is not entitled to release based on the factors set forth in Title 18, United States Code, Section 3553(a). (See Govt. Opp. 1-3.)⁸ Based upon the Government's letter, if Defendant does not appeal BOP's denial of his request for compassionate release I am free to address the instant motion beginning on April 29, 2020. (See Doc. 950.) However, assuming Defendant does appeal and/or that the time for such appeal has not yet run, I would find that his motion must be dismissed because Defendant has failed...