Judge Needs More Before Ruling On Fraudster’s Virus Release
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Law360 (August 10, 2020, 8:22 PM EDT) — A D.C. federal judge said Monday he doesn’t have enough for an “informed” ruling on a request for COVID-19-related release from the ex-owner of an Afghanistan marble mining company who is serving 4½ years in prison for defrauding the U.S. government on a $15.8 million loan.
During a nearly hourlong teleconference on California resident Azam Doost’s emergency motion for compassionate release and reduction of sentence, U.S. District Judge Amit P. Mehta ordered that a Federal Bureau of Prisonsofficial appear before him Wednesday afternoon to address claims asserted by Doost’s counsel and federal attorneys.
Judge Mehta in early May rejected Doost’s similar request for early release amid health concerns and fears of contracting the novel coronavirus. Doost lodged a second bid last month, contending he’s “at very high risk for serious illness, morbidity and mortality from COVID-19 because he suffers multiple comorbidities, including moderate persistent asthma, obesity, smoking, and potentially abdominal cancer.”
Doost added that there are now reported cases of COVID-19 at the USP-Atwater’s minimum security federal prison facility in Atwater, California, where he resides, and he alleged the BOP’s response to the pandemic has been “insufficient.”
Judge Mehta expressed sympathy toward the defendant, saying he’s “very concerned” by his assertion that no one at the facility is responding to his medical needs.
“For a month now, it seems he was diagnosed with neoplasm” — a condition that causes the growth of cells to be uncontrolled — “and nothing has been done” to further examine the health issue, the judge said.
The judge told U.S. Department of Justicetrial attorney Michael P. McCarthy that he’s not suggesting his representations in court are inaccurate, but without getting to speak directly with “someone with actual knowledge about the conditions on the ground” concerning Doost, “I’m just not in a position to make a decision on this motion.”
“I don’t feel comfortable at this point,” the judge said.
Nonetheless, Judge Mehta at one point asserted it may be too early to cut Doost’s 54-month sentence because he’s been in custody for less than 10 months and “that’s not a large percentage of time” spent off his total sentence to warrant compassionate release.
Almost two years ago, a D.C. jury found Doost guiltyon three counts of major fraud against the U.S., eight counts of wire fraud, four counts of making a false statement on a loan application and five counts of money laundering.
According to the June 2017 indictment, the scheme started in 2006 with a subsidiary of Equity Capital Group, a company in Dubai, United Arab Emirates, co-owned by Doost and his brother. The subsidiary, ECM, obtained a 10-year lease from the Afghan government to mine marble at the White Dove Marble Mine in Chishti-i-Sharif, the DOJ said.
In 2010, Doost executed the multimillion-dollar loan agreement with the Overseas Private Investment Corp., a U.S. agency that provides government investments abroad to encourage the growth of free markets, for the marble mining project. The initiative had a total project cost of $31.7 million, according to the DOJ.
The loan, designed exclusively for the mining project, required Doost to engage in arm’s-length dealing with vendors that received its funds and for him to report any affiliation he had with those vendors.
But prosecutors alleged Doost lied to OPIC that he had no affiliation with several vendors. Evidence showed that Doost’s business partner was listed on the bank accounts for several of the vendors, that a Doost company got a $40,000 payment from a consultant hired with loan funds, and that there were other transfers from loan fund recipients to companies and individuals to whom Doost owed money, according to the DOJ.
When it was time to repay the loan, the prosecutors said Doost insisted he did not have enough money to make the payments. He eventually defaulted on the loan.
During sentencing in September, Judge Mehta denied the government’s bid for a 14-year sentence, saying he “doesn’t believe he lined his pockets” from the scheme and Doost started the mining business in his country, Afghanistan, “with good intentions.” But that doesn’t mean all of his actions were appropriate, the judge said.
In that hearing, a government attorney maintained that Doost carried out the scheme to benefit himself. The government also claimed that Doost wired money to shell companies in Belize and China. But the dollar amount he generated still remains unknown because it was difficult for prosecutors to get access to all of the accounts connected to him, the attorney said.
When Judge Mehta rejected Doost’s initial request for compassionate release, he concluded, among other things, that the defendant identified no “extraordinary and compelling” circumstances warranting his release. The judge also noted that Doost was being housed in a separate unit at the California prison and there were no reported cases at the facility at the time.
In his renewed bid filed July 19, Doost explained that he did not have access to all of his medical records when he lodged his early motion in April.
“Here, Mr. Doost now provides a detailed declaration which addresses not only his multiple comorbidities, all of which warrant early release, but also conditions at the Camp [the facility where he resides] and corroborating information that clearly establish an extraordinary level of neglect and disregard by the BOP in their response not only to COVID-19 but to Mr. Doost’s health and well-being,” the defendant wrote last month.
As of Monday, according to the BOP’s website, there are nine cases of COVID-19 at USP-Atwater and four people have recovered from the virus.
McCarthy, arguing against Doost’s renewed motion, said the prison “has the situation under control and has thus far prevented” a spike in COVID-19 cases. According to the attorney, the government is not challenging assertions Doost has made concerning his underlying health conditions. McCarthy also conceded that the defendant’s weight, which the attorney said has been “fluctuating considerably,” makes him more susceptible to the coronavirus.
But defense attorney Sara Azari of the Law Office of Sara Azari rebuked McCarthy’s contention that her client has become obese as a way to win his motion.
Doost has been struggling with obesity “for his entire life,” Azari shot back. “The court has before it, and the government has seen it, that are records from Kaiser Permanentefrom 2014, 2015, where he was overweight. … So this is not new.”
The defense attorney added, “I don’t disagree with the government’s position … that people are doing all kinds of things to get out of prison. But with respect to obesity, he actually has a history of obesity. There’s nothing unusual about him gaining this kind of weight.”
Doost’s case is also on appeal at the D.C. Circuit.
The government is represented by Michael P. McCarthy of the U.S. Department of Justice’s Criminal Division.
Doost is represented by Sara Azari of the Law Office of Sara Azari and Allison Baker Shealy of Shulman Rogers Gandal Pordy & Ecker PA.
The case is U.S. v. Azam Doost, case number 1:17-cr-00109, in the U.S. District Court for the District of Columbia.
–Additional reporting by Daniel Siegal. Editing by Orlando Lorenzo.
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