By Stewart Bishop

Law360, New York (December 1, 2020, 9:18 PM EST ) Former HSBC foreign currency executive Mark Johnson on Tuesday began another push to avoid prison following his conviction and sentencing for defrauding HSBC client Cairn Energy PLC in a $3.5 billion currency deal.

Fresh off the U.S. Supreme Court's decision not to review his case, an attorney for Johnson told U.S. District Judge Nicholas G. Garaufis during a videoconference they are planning to make a motion for a compassionate reduction of sentence, in light of medical issues that place Johnson in a high risk category were he to contract COVID-19 in prison.

"We think there are compelling reasons [for] Mr. Johnson not to come back to a U.S. prison," Johnson's attorney Frank Wohl of Lankler Siffert & Wohl LLP said.

Johnson, a U.K. national and former global head of forex spot trading for HSBC, was convicted in 2017 of wire fraud and conspiracy and later sentenced to two years in prison. Johnson was incarcerated for about two months, before the Second Circuit granted him bail pending appeal. He has been residing in the U.K. during the appellate process and is currently due to report back to a U.S. prison on March 23.

The case stems from a deal Cairn made with HSBC to exchange $3.5 billion in proceeds from the sale of an Indian subsidiary from U.S. dollars to pounds sterling, in order for the London Stock Exchange-traded Cairn to make a distribution to investors.

Prosecutors say Johnson and others at HSBC engaged in front-running and other trading around the dollars-for-sterling deal that caused the price of sterling to spike, netting the bank millions of dollars in profits at the expense of its client, Cairn.

Wohl, noting Johnson's extensive community service in the U.K. since his release from prison as well as the risks Johnson would face in prison amid the pandemic with a serious heart condition, told Judge Garaufis that home confinement or some other arrangement is warranted.

"We think we should find a way to really ameliorate the situation so that the Bureau of Prisons doesn't have to deal with another inmate who doesn't really need to be there," Wohl told Judge Garaufis.

Assistant U.S. Attorney Lauren Elbert told the judge there is currently a lot of uncertainty with respect to the direction of the pandemic and the possibility of a vaccine soon becoming available. Elbert said public reporting suggests that multiple vaccines are likely be available come the spring, and inmates may get priority access to such treatment.

Elbert said it's worth considering whether it makes sense to go ahead with the "drastic measure" of essentially vacating Johnson's sentence, when COVID-19 conditions may improve by the time Johnson is due to self surrender. It's also possible that Johnson could petition the U.S. State Department to be transferred to the U.K. to serve out the remainder of his sentence, Elbert said.

Judge Garaufis directed the parties to brief the issue, and said it would be helpful for the court to know the status of potential COVID-19 vaccinations in the U.K. and whether or not Johnson would qualify for any vaccination priority list for people with underlying medical issues.

Johnson's opening brief is due on Dec. 15.

The government is represented by Lauren Elbert of the U.S. Attorney's office for the Eastern District of New York.

Johnson is represented by Frank Wohl, Ramya Kasturi and Jeannie Rose Rubin of Lankler Siffert & Wohl LLP.

The case is U.S. v. Johnson et al., case number 1:16-cr-00457, in the U.S. District Court for the Eastern District of New York.  

--Editing by Emily Kokoll.

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