By Chris Villani

Law360 (May 13, 2020, 7:05 PM EDT) -- A former NFL player jailed for fraud will learn Friday whether he will leave a Massachusetts prison early over concerns about COVID-19, a federal judge said Wednesday after a five-hour hearing in which he noted the release of former Trump campaign chairman Paul Manafort.

U.S. District Judge Mark L. Wolf has heard more than eight hours of argument and testimony in Robert "Bubba" Pena's bid to serve the rest of his sentence in his Cape Cod home. Pena, 70, does not meet the standard for a compassionate release, the government has argued, because he has not cleared either of two bars: serving half of his 32-month sentence or serving a quarter of the prison time and having less than 18 months remaining.

But Judge Wolf pointed out that Manafort is also in his 70s and will be serving the rest of his prison term for two separate convictions arising out of former special counsel Robert Mueller's wide-ranging probe into Russian interference in the 2016 U.S. presidential election.

Judge Wolf also said he was concerned about statistics from the Massachusetts Department of Public Health that show that people 70 and older accounted for more than 80% of the deaths stemming from the novel coronavirus.

"I intended to give Mr. Pena a serious sentence, but not a death sentence," Judge Wolf said. The judge said he would issue a ruling from the bench on Friday morning.

Most of the day Wednesday was spent questioning the warden at FMC Devens, the federal prison camp west of Boston where Pena is currently being held. The warden, Rear Admiral Stephen Spaulding, said the pandemic is not a consideration when it comes to assessing whether an inmate should be released early.

Spaulding testified that the prison facility has had two cases of COVID-19 among inmates, but Scott Katz, Pena's attorney, noted toward the end of the hearing that the number has risen to eight, according to statistics posted by the Bureau of Prisons. Spaulding said he did not have any information about the additional reported cases.

A separate lawsuit has called FMC Devens a COVID-19 "powder keg" and attorneys in that case told a different Massachusetts judge that prison officials aren't following the social distancing guidelines necessary to stem the spread of the disease.

Spaulding said Pena has a good chance of getting out of prison in July, when he will have served 25% of his prison term.

"If you would recommend his release in July, is there a good reason why I shouldn't order his release in May and avert the risk that he will get infected in the next two months?" Judge Wolf asked.

"That's a great question," Spaulding replied. "I can tell you we are talking about two months. The bureau has made a firm stance on this."

Assistant U.S. Attorney Brian LaMacchia urged Judge Wolf not to let Pena circumvent the compassionate release process, warning of wide-ranging consequences.

"You may disagree with the process … but at the same time, if through compassionate release you're going to pass that process and effectively letting Mr. Pena jump the line, you're creating a race to the courthouse," LaMacchia said.

The guidance from the DOJ that spelled out the rules for how long prisoners should serve before eligible for release because of the pandemic came down in April, but Judge Wolf pointed out that guidance did not seem to apply to Manafort.

"Nobody has told you the Bureau of Prisons released Paul Manafort today even though he had not served half his sentence and had far more than 18 months left?" Judge Wolf asked Spaulding, who said he hadn't heard. Both attorneys said they knew little of the specifics in the Manfort case and Judge Wolf acknowledged there could be different circumstances there.

Pena is a former Cleveland Browns lineman who pled guilty to embezzling lump-sum payments from borrowers and lying to the Government National Mortgage Association about the loans' performance to cover his tracks. He has cited his age and, as a black man, his race, as factors that put him at a higher risk of death should he contract COVID-19.

Pena also submitted an affidavit saying he weighed over 300 pounds, another potential risk factor, but Spaulding testified that Pena has been walking the track at the prison regularly and has gotten his weight down to 243lbs and is no longer considered obese.

Katz said Pena was not trying to intentionally deceive the court about his weight, but LaMacchia said Pena "lied his way into prison and is trying to lie his way out."

The weight issue doesn't matter, Katz argued in an effort to get his client out of prison.

"The risk of infection is there and it's increasing," he said. "We know based on age alone and perhaps more, Mr. Pena faces an elevated risk."

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 the U.S. District Court for the District of Massachusetts.

--Editing by Amy Rowe.

For a reprint of this article, please contact reprints@law360.com.