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Law360 (April 28, 2020, 11:44 AM EDT) -- A 70-year-old former NFL lineman in prison for embezzling $2.5 million is likely safer from COVID-19 behind bars than he would be if he were released during the pandemic, the government argued Monday.
Robert "Bubba" Pena argued in an emergency motion last week that he should be released from the Federal Medical Center in Devens, Massachusetts, during the pandemic, citing his age, his race as a black man, and "numerous health issues." But federal prosecutors opposed the bid, saying the lack of any confirmed cases at Pena's facility and the nature of his crime should keep him locked up.
The government noted that the Massachusetts county where Pena lives has nearly 772 confirmed cases of coronavirus. If he's released to home confinement, he or his wife may need to venture outside their home to run errands or seek medical care, further putting him at risk of infection, prosecutors said.
"Considering all the circumstances — including Mr. Pena's serious crime, his particular circumstances, the [Bureau of Prisons]'s substantial efforts to prevent COVID infection among its inmates, the actual conditions at FMC Devens, and the likelihood that home confinement would present a substantial risk of infection compared to remaining in that facility — the government does not believe that Mr. Pena has demonstrated 'extraordinary and compelling reasons' ... for such a substantial change in his sentence," prosecutors wrote.
A federal judge sentenced Pena last April to 32 months in prison after he pled guilty to stealing payments on home loans that were sold as government-backed securities.
Prosecutors noted Monday that Pena has only served six months so far. They also argued the former Cleveland Browns player has not exhausted all of the administrative remedies available to him.
The Devens prison has been described as a coronavirus "powder keg" in a separate lawsuit filed by inmates seeking release, but prosecutors painted a different picture in Monday's filing.
The facility is split into two separate parts, they said: the prison, which did not record its first COVID-19 case until April 24, and an adjacent camp, where Pena is housed. The latter has not had any COVID-19 cases, the government said. The inmate in the prison who was infected was quarantined and did not have any interaction with other inmates, prosecutors wrote.
The Bureau of Prisons has also taken extensive steps to limit the spread of coronavirus in its facilities, the government argued. And, while prosecutors said Pena should not yet be released, they said other inmates are being released from the prison to allow for more social distancing. As of Friday, eight inmates had been moved to home confinement and 12 others were being vetted for approval, according to the filing.
In his motion, Pena cited research showing that black Americans are dying at a disproportionately high rate from the virus due to underlying economic and health factors.
He asked to serve out the remainder of his sentence in home confinement on Cape Cod. Pena would stay with his wife of 32 years, he said, adding that she just recently lost her father to COVID-19.
Pena said inmates are sharing a dozen toilets, sinks and showers, which are cleaned just twice daily. The inmates also share just a few telephones and computers, which are not cleaned between uses, he said. Soap sometimes runs out and the masks Pena has received are "flimsy," he argued.
The government said Pena took lump sum payments from borrowers, deposited them into his own account and lied to the Government National Mortgage Association about the loans' performance to cover his tracks. The agency, known as Ginnie Mae, guarantees payments to investors in mortgage bonds backed by federal home loans.
Counsel for Pena did not immediately respond to a comment request Tuesday and a government representative declined to comment.
The government is represented by Brian M. LaMacchia of the U.S. Attorney's Office for the District of Massachusetts.
Pena is represented by Scott A. Katz of Scott Katz Law.
The case is U.S. v. Pena, case number 1:16-cr-10236, in U.S. District Court for the District of Massachusetts.
--Editing by Rebecca Flanagan.
For a reprint of this article, please contact reprints@law360.com.
