United States v. Zukerman

• Decision Date: 03 April 2020
• Docket Number: 16 Cr. 194 (AT)
• Citation: United States v. Zukerman, 451 F. Supp. 3d 329 (S.D. N.Y. 2020)
• Parties: UNITED STATES of America, v. Morris E. ZUKERMAN, Defendant.
• Court: U.S. District Court — Southern District of New York

451 F.Supp.3d 329

UNITED STATES of America,

v.Morris E. ZUKERMAN, Defendant.

16 Cr. 194 (AT)

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

Signed April 03, 2020

Stanley John Okula, Jr., Edward Arthur Imperatore, United States Attorney's Office, New York, NY, for United States of America.

Paul Lewis Shechtman, Bracewell LLP, Margaret Emma Lynaugh, Bracewell LLP, New York, NY, David Michael Horniak, David M. Zinn, Williams & Connolly LLP, Washington, DC, for Defendant.

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. §§ 7201and7212(a).SeeJune27, 2016 ECF entry.On March 21, 2017, the Court sentenced him to 70 months of incarceration followed by one year of supervised release.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 alsoECF No. 59.Zukerman surrendered to Otisville on June 26, 2017, and he has paid the fine and restitution in full.Def. Letterat 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'tOpp. 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. Letterat 2;Gov't Opp.at 4.

Zukerman is 75 years old and suffers from diabetes, hypertension, and obesity.Def. Letterat 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 alsoCOVID-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 dormitories (as opposed to individual cells)."Def. Letterat 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 PrisonsCOVID-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. Replyat 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."SeeDutta Letter, ECF No. 112-2.

On March 27, 2020, Zukerman submitted a request for compassionate release to Otisville's warden.SeeECF No. 112-3.On March 30, 2020, having not yet received a response, Zukerman moved this Court to modify his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) in light of the COVID-19 pandemic.He states that the "risk COVID-19 poses to [his] health amounts to an ‘extraordinary and compelling’ circumstance that warrants transferring [him] to supervised release with a special condition of home confinement for the duration of his sentence."Def. Letterat 1.The Government argues that Zukerman's motion should be denied for two reasons: first, because Zukerman has not exhausted his administrative remedies under § 3582(c)(1)(A), which requires that a defendant seeking compassionate release present his application to the BOP and then either (1) administratively appeal an adverse result if the BOP does not agree that his sentence should be modified, or (2) wait for 30 days to pass; and second, because Zukerman is not an appropriate candidate for release given the seriousness and duration of his offense.Gov't Opp.at 1.

The Court disagrees.First, the Court holds that Zukerman's exhaustion of the administrative process can be waived in light of the extraordinary threat posed—in his unique circumstances—by the COVID-19 pandemic.Second, although the sentence imposed on Zukerman was wholly warranted, the Court holds that the threat posed by COVID-19, in light of his age and medical status, constitutes an extraordinary and compelling reason to modify Zukerman's sentence.

DISCUSSION

As amended by the First Step Act, 18 U.S.C. § 3582(c)(1)(A) authorizes courts to modify terms of imprisonment as follows:

The court may not modify a term of imprisonment once it has been imposed except that—in any case—the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that--

(i) extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

Accordingly, in order to be entitled to relief under 18 U.S.C. § 3582(c)(1)(A)(i), Zukerman must both meet the exhaustion requirement and demonstrate that "extraordinary and compelling reasons" warrant a reduction of his sentence.The Court addresses these requirements in turn.

I.Exhaustion

Section 3582(c)(1)(A) imposes "a statutory exhaustion requirement" that "must be strictly enforced."United States v. Monzon , No. 99 Cr. 157, 2020 WL 550220, at *2(S.D.N.Y.Feb. 4, 2020)(citingTheodoropoulos v. I.N.S. , 358 F.3d 162, 172(2d Cir.2004)(internal quotation marks and alterations omitted)).¹However, as this Court and others have held, the requirement of completing the administrative process may be waived "if one of the recognized exceptions to exhaustion applies."United States v. Perez , No. 17 Cr. 513-3, 451 F.Supp.3d 288, 291(S.D.N.Y.Apr. 1, 2020);seeUnited States v. Colvin , No. 19 Cr. 179, 2020 WL 1613943, at *2(D. Conn.Apr. 2, 2020)("[I]n light of the urgency of [d]efendant's request, the likelihood that she cannot exhaust her administrative appeals during her remaining eleven days of imprisonment, and the potential for serious health consequences, the [c]ourt waives the exhaustion requirement of Section 3582(c)(1)(A).");United States v. Powell , 94 Cr. 316, ECF No. 98 (D.D.C. Mar. 28, 2020)(waiving exhaustion under § 3582(c)(1)(A) where the [c]ourt found that "requiring defendant to first seek relief through the [BOP] administrative process would be futile").

"Even where exhaustion is seemingly mandated by statute ..., the requirement is not absolute."Washington v. Barr , 925 F.3d 109, 118(2d Cir.2019)(citingMcCarthy v. Madigan , 503 U.S. 140, 146–47, 112 S.Ct. 1081, 117 L.Ed.2d 291(1992) ).²There are three circumstances where failure to exhaust may be excused."First, exhaustion may be unnecessary where it would be futile, either because agency decisionmakers are biased or because the agency has already determined the issue."Id.Second, "exhaustion may be unnecessary where the administrative process would be incapable of granting adequate relief."Id. at 119.Third, "exhaustion may be unnecessary where pursuing agency review would subject plaintiffs to undue prejudice."Id.

All three of these exceptions apply here."[U]ndue delay, if it in fact results in catastrophic health consequences, could make exhaustion futile.Moreover, the relief the agency might provide could, because of undue delay, become inadequate.Finally, and obviously, [Zukerman] could be unduly prejudiced by such delay."Washington , 925 F.3d at 120–21;seeBowen v. City of New York , 476 U.S. 467, 483, 106 S.Ct. 2022, 90 L.Ed.2d 462(1986)(holding that irreparable injury justifying the waiver of exhaustion requirements exists where "the ordeal of having to go through the administrative process may trigger a severe medical setback"(internal quotation marks, citation, and alterations omitted));Abbey v. Sullivan , 978 F.2d 37, 46(2d Cir.1992)("[I]f the delay attending exhaustion would subject claimants to deteriorating health, ... then waiver may be appropriate.");New York v. Sullivan , 906 F.2d 910, 918(2d Cir.1990)(holding that waiver was appropriate where "enforcement of the exhaustion requirement would cause the claimants irreparable injury" by risking "deteriorating health, and possibly even ... death");see alsoPerez , 451 F.Supp.3d at 291 – 93, (holding that § 3582(c)(1)(A)'s exhaustion requirement could be waived where delay carried the risk of the vulnerable defendant contracting COVID-19).Here, even a few weeks' delay...