By Amy Lee Rosen

Law360 (May 11, 2020, 7:21 PM EDT ) A federal judge on Monday denied a request for a COVID-19-related compassionate release from a New York attorney who has pled guilty to helping steal about $11.8 million from estates he managed because he didn't prove any specific health risk.

Compassionate release for attorney Thomas Lagan is not appropriate because he did not point to any specific medical conditions or primary risk factors identified by the Centers for Disease Control and Prevention that would elevate his risk for severe illness and death from COVID-19, the opinion said. COVID-19 is the respiratory ailment that results from the novel coronavirus.

Lagan "offers little more than his say-so in support of this assertion and does not proffer any authority that might buttress his claim that his constellation of health conditions makes him especially vulnerable to COVID-19," the opinion said. "The court is sympathetic to Lagan's situation, and does not wish him — or anybody else — to get sick while in prison, but it cannot release Lagan merely upon his own assertion that he is at high risk."

In August, Lagan pled guilty to helping steal around $11.8 million from the estates of three sisters he managed and not reporting about $3.5 million of income on his tax returns. In a parallel New York state proceeding last year, Lagan also pled guilty to grand larceny in the first degree in Albany County Court and that court sentenced him to four to 12 years of imprisonment for his state offense, according to court documents.

In December, Lagan was sentenced for his federal crimes for a period of 78 months to run concurrently to the New York state sentence.

Lagan filed a motion for compassionate release in April in light of the coronavirus pandemic, according to the opinion. While granting a compassionate release is allowed under Section 3582 of the First Step Act , it requires a showing of "extraordinary and compelling reasons," the opinion said. The First Step Act reforms the federal prison system by providing opportunities for convicted felons to receive earlier releases from prison and improving conditions for current prisoners. 

Lagan asked for compassionate release because he is 62 years old, obese, has a family history of heart disease and lung cancer and a history of heavy smoking and drinking. But those reasons are not extraordinary and compelling reasons that would justify his release, the court said.

None of Lagan's conditions are squarely on the CDC's list for COVID-19, District Judge Lawrence E. Khan explained. For example, Lagan has a body mass index between 30-39.9, but the CDC identified at-risk as a body mass index of 40 or more for people 65 and older, the opinion said.

More importantly, neither his own medical records nor the Federal Bureau of Prisons health records shows that Lagan suffers from other primary risk factors for COVID-19, such as diabetes, immunocompromisation or asthma, that the CDC has identified, the opinion said.

Currently incarcerated at the Brooklyn Metropolitan Detention Center, Lagan is waiting for the Federal Bureau of Prisons to determine where he will serve the remainder of his sentences. However, it is unlikely that Lagan will be transported anytime soon because the bureau has temporarily suspended transferring inmates due to the COVID-19, the opinion said.

While the district court acknowledged there is pending litigation in the Eastern District of New York regarding whether the conditions of confinement at the detention center are so dangerous as to constitute a violation of the Eighth Amendment , this is not sufficient to establish extraordinary and compelling reason to justify Lagan's release, the opinion said.

"Given Lagan's lack of a demonstrated COVID-19 risk factor, how recently the court sentenced him to a 78-month term of incarceration and the challenges in fashioning an appropriate remedy, the court is compelled to deny Lagan's request for compassionate release," the opinion said.

A New York grand jury indicted Lagan in July 2018 on charges that he conspired with a former state court judge Richard Sherwood to divert into personal accounts more than $9 million in property and funds from trusts they were meant to manage. Sherwood separately forfeited $3.7 million in June 2018 that the U.S. Attorney's Office and the FBI had seized from him and admitted not reporting $4.7 million from the fraudulent scheme, according to court documents.

Representatives of Lagan and the government did not immediately respond to requests for comment.

The U.S. government is represented by Michael S. Barnett and Alicia Suarez of the Office of U.S. Attorney in Albany.

Lagan is represented by John J. Markham of Markham and Read, Kevin A. Luibrand of Luibrand Law Firm PLLC and E. Stewart Jones Jr. of E. Stewart Jones Hacker Murphy LLP.

The case is U.S. v. Thomas K. Lagan, case number 1:18-cr-00283, in the U.S. District Court for the Northern District of New York.

--Additional reporting by Theresa Schliep and Emma Cueto. Editing by Neil Cohen.

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