By Jody Godoy

Law360 (April 9, 2020, 4:08 PM EDT ) Chinese real estate developer Ng Lap Seng has asked a federal judge to grant him compassionate release from prison, saying his age and health conditions put him at a high risk of death if he is infected with the novel coronavirus.

Ng was found guilty in 2017 of foreign bribery, conspiracy and money laundering after a jury heard that he greased the palms of two United Nations officials in order to garner support for a conference center he planned to build in Macau. He is serving a four-year sentence at a low-security prison in Pennsylvania and will be eligible for release in late 2021.

In an updated motion filed Wednesday, Ng told U.S. District Judge Vernon Broderick that requiring him to stay behind bars amid the pandemic could turn into a "death sentence" because he is 71 and suffers from diabetes, heart problems, high cholesterol and heart disease.

As of Wednesday, 253 federal inmates and 85 staff have tested positive for the virus and eight inmates have died, according to the Bureau of Prisons. As of April 5, the BOP sent 566 inmates to home confinement after Attorney General William Barr told BOP officials to use the mechanism to protect prisons from the pandemic.

The crisis has also caused a flood of requests for compassionate release such as Ng's. Those requests are running up against a specific legal hurdle. Under the First Step Act, judges can review compassionate release petitions, but only after an inmate appeals to the BOP and is denied or waits 30 days.

Unless prosecutors have not opposed an inmate's release, judges are tending to follow that requirement and denying appeals made less than 30 days after a request to the BOP. Ng is hoping Judge Broderick will see a way around that hurdle and not wait another two weeks from when he petitioned the BOP on March 27.

In his motion, Ng pointed to another criminal case in which Judge Broderick ordered prosecutors to ask the BOP whether it would be able to reply to a compassionate release petition within 30 days. They replied that the BOP "hopes" to do so. The judge has yet to rule in that case.

Now, Ng wants Judge Broderick to either waive the 30-day requirement or order the BOP to make a decision on his petition. The Macau developer argued that a Second Circuit ruling last year allows plaintiffs to skip exhausting their administrative options in some circumstances.

In that case, a former NFL player sued to decriminalize medical marijuana, but the Second Circuit said he should first petition the Drug Enforcement Administration to reschedule the drug.

However, the appeals court said that such a requirement to petition an agency can be relaxed for cases in which the route would prove "futile," would not result in adequate relief or would cause undue prejudice. Ng argues his case fits all three criteria.

U.S. District Judge Analisa Torres, one of Judge Broderick's colleagues, accepted that argument in U.S. v. Perez last week. However, the inmate in that case had less than 30 days left to serve.

Ng seeks release to his Manhattan apartment. Before his trial, Judge Broderick allowed him to stay confined to his home under the supervision of private guards as part of a $20 million bail package. The Second Circuit later questioned the fairness of such arrangements to poorer defendants.

Spokesmen for the Department of Justice's Fraud Section and the U.S. Attorney's Office for the Southern District of New York declined to comment on Thursday.

Ng is represented by Benjamin Brafman, Jacob Kaplan and Stuart Gold of Brafman & Associates PC.

The government is represented by Daniel C. Richenthal, Janis M. Echenberg and Douglas S. Zolkind of the U.S. Attorney's Office for the Southern District of New York and David A. Last of the DOJ's Fraud Section.

The case is U.S. v. Ashe et al., case number 1:15-cr-00706, in the U.S. District Court for the Southern District of New York.

--Editing by Amy Rowe.

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