By Anne Cullen

Law360 (May 28, 2020, 9:14 PM EDT) -- Prosecutors who secured the price-fixing conviction of former Bumble Bee CEO Chris Lischewski have panned the 59-year-old's assertion that jail time presents a threat to his life during the coronavirus pandemic, arguing he's not in a high-risk category and deserves no special treatment. 

The government is angling to put the Lischewski behind bars for up to a decade and saddle him with a $1 million fine after a jury found him guilty in December of violating federal antitrust laws by teaming up with executives at rivals StarKist and Chicken of the Sea to raise the price of canned tuna.

Lischewski's dueling sentencing proposal, which called for one year of home detention and a $25,000 fine, highlighted the risks of shuffling him into a crowded, virus-prone prison when he's nearly 60, an age identified by experts as at high risk of serious complications from COVID-19, the disease caused by the novel coronavirus.

Prosecutors, however, weren't swayed Wednesday, arguing Lischewski is overstating the dangers jail time presents.

"Defendant — who has none of the risk factors identified by the CDC — provides no basis for why he deserves special treatment as a result of the global pandemic," the federal government argued, pointing out that Lischewski is physically healthy, takes no medications and has no chronic health conditions.

They also laid out a list of protective steps the Bureau of Prisons has taken to stymie the impact on their facilities, including social distancing, hygiene and cleaning protocols; quarantining of symptomatic inmates; and restrictions on visits among others. "The extensive measures taken by BOP belie defendant's suggestion that BOP is failing to meaningfully address the risk posed to inmates," they said.

In addition, prosecutors pointed out that Lischewski's home detention bid would land him in the same situation as most of the country's law-abiding citizens, who are currently sheltering in place to prevent the spread of the pandemic. Sentencing him to a year within his lavish San Diego mansion would hardly be a punishment, they said.

"Rewarding defendant with a noncustodial sentence to be served in a home with a private movie theater, home gym, wine cellar, six bedrooms, and seven-and-a-half bathrooms shared only with two family members, while hundreds of millions of Americans shelter in place in significantly less opulent circumstances, sends a message to corporate executives that they are above the law and that their lifestyle alone is a get-out-of-jail-free card," prosecutors argued.

Lischewski, however, argued in his response to the sentencing proposals Wednesday that the government is ignoring "the once-in-a-century deadly pandemic sweeping the U.S. prison system, which could transform a custodial term into a death sentence."

According to the BOP, there are about 1,800 federal inmates and 190 staffers who have tested positive for COVID-19 of the roughly 136,000 inmates and 12,200 staffers in their community-based facilities, as of Wednesday. The bureau has also reported that 64 inmates have died from COVID-19 complications.

Lischewski insisted "these numbers are surely inaccurate" and said testing in prisons has been "grossly insufficient."  He added that in the two weeks since he lodged his sentencing proposal, the situation has only worsened, with COVID-19 continuing to cut through crowded prisons.

Attorney General William Barr directed the bureau in late March to send high-risk patients to home confinement based on a number of factors, including their age and whether they pose a danger to the community, and the bureau has since placed more than 3,300 inmates into home detention.

The former executive said he's nearly 60, "thus he is susceptible to severe and potentially fatal complications of COVID-19," and that he's not at risk of reoffending and poses no danger to the public. It "makes no sense" to force him to report to prison when the bureau is looking to send people like him back home, he said. 

The two sides also squared off Wednesday over Lischewski's upcoming sentencing hearing, which U.S. District Judge Edward Chen recently slated for June 16, after a June 3 remote hearing on the sentencing guideline calculations.

The judge asked both parties whether they think it's on the up-and-up for Lischewski to appear via videoconference for the first phase, and the government responded that the court should consider delaying the sentencing before going the remote route. 

"Before any part of sentencing is conducted via videoconference," prosecutors said the court must find that putting off sentencing would result in "serious harm to the interests of justice." 

"The government is unaware, however, of any 'serious harm to the interests of justice' that would result from a continuance in this case," prosecutors said Wednesday. 

Lischewski disagreed, arguing he's "been in limbo following his conviction for nearly six months, and the uncertainty and stress that he and his family have been living with has been agonizing." He said he's entitled to sentencing in short order "so that he can close this painful chapter of his life, begin serving his sentence and rebuild his life."

He called for Judge Chen to cement the tentative plan and hand down a final sentence June 16, which will be an in-person proceeding laden with precautions, including plexiglass barriers in the courtroom, attendee limits and mandated masks. 

Lischewski was convicted after nearly four weeks of trial in December, during which the jury heard testimony from a host of other major players in the canned tuna industry, including former Chicken of the Sea CEO Shue Wing Chan, StarKist Vice President of Sales Stephen Hodge and Bumble Bee's former senior vice presidents Kenneth Worsham and Walter Scott Cameron, who both testified that Lischewski had directed the conspiracy.

Worsham, Cameron and Hodge have all pled guilty to their role in the plot and are awaiting sentencing. Chan has received amnesty in return for cooperating with the investigation.

Bumble Bee and StarKist have also pled guilty to conspiring to fix prices and were slapped with fines of $25 million and $100 million, respectively. Chicken of the Sea has admitted to wrongdoing and cooperated with the government's investigation. 

Representatives for the parties did not respond to requests for comment Thursday.

The government is represented by Manish Kumar, Mikal Condon, Leslie Wulff and Andrew Schupanitz of the U.S. Department of Justice's Antitrust Division.

Lischewski is represented by Elliot Peters, Christopher Kearney, Elizabeth McCloskey and Nicholas Goldberg of Keker Van Nest & Peters LLP.

The case is U.S. v. Lischewski, case number 3:18-cr-00203, in the U.S. District Court for the Northern District of California.

--Additional reporting by Hannah Albarazi, Cara Bayles and Frank G. Runyeon. Editing by Gemma Horowitz.

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