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Pandemic or not – Serious insurance fraud Criminal must serve the sentence



Mikhail Zemlyansky is serving a 15-year prison sentence imposed in January 2016. He is currently incarcerated at the Federal Correctional Institution in Fairton, New Jersey. The defendant has moved for compassionate release under the First Step Act in light of the COVID-19 pandemic. The government opposes the proposal. In United States Of America v. Mikhail Zemlyansky 12-CR-171-01 (JPO), United States District Court in the Southern District of New York (July 6, 2020), the guard failed to grant compassionate release and Zemlyansky appealed to USDC.

FACTS

The defendant was convicted of running a wide-ranging company that engaged in, among other things, insurance fraud, securities fraud and money laundering. Fraud by the company lost millions of dollars. For the reasons explained by the court at the time of the verdict, these crimes were extremely serious and he was sentenced to 1

5 years and had only served five so far.

LEGAL STANDARD

A court may not change the period of imprisonment once it has been introduced except by law. According to the law on the first step from 2018, a court is allowed to reduce the prison term if, after considering the factors, it finds that extraordinary and convincing reasons justify such a reduction and that such a reduction is in accordance with applicable political statements issued by the court. Commission. The applicable policy document describes four circumstances that constitute “extraordinary and convincing reasons” and thus justify a reduction in judgment. One of these circumstances is where the defendant "suffers from a serious physical or medical condition which significantly reduces the defendant's ability to provide self-care in the environment of a correctional facility and from which he or she is not expected to recover. The policy document also requires that the defendant does not" danger to the safety of another person or to society. "

DISCUSSION

The defendant is a 44-year-old man who suffers from high blood pressure and is overweight, claiming that these conditions put him at high risk for serious complications in the event of a COVID-19 outbreak in prison. [19659008] In other cases, this court has found "extraordinary and compelling reasons" that justify deprivation of liberty from home serious health risks from the COVID-19 pandemic.

Although the defendant's hypertension and weight are likely to place him at a slightly higher risk from COVID-19, they are relatively normal conditions and the defendant is relatively young.When the parties submitted their submissions, FCI Fairton appeared to have a low incidence of coronavirus infection among prisoners, however, according to the latest information from BOP, FCI Fairton recently experienced an outbreak, with 97 prisoners testing positive for COVID-19

Despite the outbreak of the FCI Fairton, the court did not find "extraordinary and convincing reasons" to justify the defendant's release. For that reason, the Court cannot conclude that the release at home now – approximately five years to a 15-year sentence – is justified on the basis of the factors set out in the Charter.

The statutory purposes of specific deterrence and protection of the public from further offenses, in addition to fair punishment, respect for the law and general deterrence, require the defendant to serve a substantial part of the sentence imposed by the court.

For the above reasons, Zemlyansky's proposal for consensual release responds as denied.

A sentence of 15 years is only assessed for a very serious insurance offender. There is no doubt that defendant Zemlyansky was a serious criminal who received a serious sentence. Just because he is fat and like most obese people has high blood pressure does not change the fact that he deserved to spend his time in prison to fulfill the statutory purposes of the penal code. He was punished fairly and that punishment can discourage others. To allow the existence of a pandemic to allow him to avoid his just punishment defeats the purpose of the penal code.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to employment as an insurance consultant focusing on insurance coverage, insurance claims handling, bad faith insurance and insurance fraud almost equally for insurance companies. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and attorney-at-law attorney and more than 52 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award.

For the past 52 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurance companies and their claims staff to become professional insurance claims.

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