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Law360 (September 24, 2020, 6:02 PM EDT ) Autonomy's former chief financial officer Sushovan Hussain asked a California federal court on Wednesday for a reduction of his five-year sentence for lying about the British software company's financials before Hewlett-Packard Co.'s $11.7 billion acquisition in 2011, arguing COVID-19 will jeopardize his health in prison.
Hussain, who lost an appeal in the Ninth Circuit last month and is not yet serving his sentence, did not specify the exact reduction he is seeking, but said COVID-19 drastically changed what 60 months in prison means since he was sentenced in 2019. He also argued his severe asthma and high cholesterol puts him at a high risk should he contract the virus.
A British citizen, Hussain said he has been restricted to the Northern District of California since January 2018 when he entered the country to prepare for his trial, and because the pandemic shut down most international travel, he has been unable to see his family.
"Had the court known at sentencing that a deadly pandemic was on the way, that Sushovan would be separated from his family for almost three years before beginning his sentence, and that any time Sushovan served would be even harsher and more restrictive than anticipated, we respectfully submit that the court would not have imposed a five-year term of imprisonment," Hussain said.
After a three-month trial, a unanimous 12-member jury convicted the former executive in April 2018 on all 16 counts of wire and securities fraud that prosecutors lobbed against him. He was later sentenced to five years in prison and ordered to pay $4 million in fines.
During trial, prosecutors argued Hussain had cooked Autonomy's books, made dozens of "garbage" quid pro quo deals, and hid the company's substantial hardware sales between 2009 and 2011, falsely selling the business as a "pure software company" and misrepresenting its sustainability.
Prosecutors said Hussain's lies snowballed and ballooned the company's revenues as the global economy tanked, defying common sense. As a result, the government said HP purchased Autonomy at an inflated price and was forced to write off $8.8 billion months after the deal closed in October 2011. Hussain is expected to service his time at FCI Allenwood in Pennsylvania.
The Ninth Circuit in August rejected various arguments in favor of nixing Hussain's conviction, including that the U.S. Department of Justice can't bring wire fraud charges extraterritorially because the deal was governed by English securities laws and accounting rules and was conducted in the British pound.
In his motion to reduce his sentence, Hussain said "it is not just that Sushovan — a 56-year-old man with chronic asthma — will be at serious risk of contracting a potentially fatal disease. As a result of the pandemic, whatever time Sushovan spends in prison will also be much, much harder than anyone contemplated when he was sentenced in 2019."
Among the new hardships he said he would be subjected to are a 21-day quarantine upon arriving in prison and not being allowed to leave his cell during that time except for three showers a week.
"Even after quarantine, he will encounter much stricter prison conditions across the board: he will not be allowed to work or participate in educational programs, he cannot have any visitors, and his phone access will be restricted," the motion said.
Counsel for Hussain and the U.S. Attorney's Office for the Northern District of California did not immediately respond to requests for comment.
The government is represented by Assistant U.S. Attorneys Robert S. Leach, William Frentzen and Adam A. Reeves.
Hussain is represented by John W. Keker, Jan Nielsen Little, Brook Dooley, Nicholas D. Marias and Cody Gray of Keker Van Nest & Peters LLP.
The case is U.S. v. Hussain, case number 3:16-cr-00462, in the U.S. District Court for the Northern District of California.
--Additional reporting by Mike LaSusa and Dorothy Atkins. Editing by Philip Shea.
For a reprint of this article, please contact reprints@law360.com.
