By Chris Villani

Law360 (May 6, 2020, 9:55 PM EDT) -- A former NFL lineman in prison for a $2.5 million fraud scheme will have to ask the warden at the Massachusetts facility where he's being held to take a second look at his request to be released due to the COVID-19 pandemic, a judge said during a hearing Wednesday.

It seems reasonable to allow Robert "Bubba" Pena, 70, to serve out the remainder of his 32-month sentence in home confinement, U.S. District Judge Mark L. Wolf said Wednesday, but he first wanted the warden at the Federal Medical Center in Devens, Massachusetts, to weigh in.

The warden denied Pena's first request to be released, in which the one-time football star cited his age and race as risk factors for serious illness should he become infected. But with circumstances surrounding the crisis changing so rapidly, the warden might have a change of heart now, the judge said.

"I'm inclined not to decide this matter today but to give the minimum reasonable time for the warden to consider, in the possibly materially changed circumstances, whether he decides Mr. Pena should go to home confinement," Judge Wolf said. "Based on what I know, that would be reasonable."

Judge Wolf said releasing Pena to his Cape Cod home after serving about six months of his prison term would not undercut the seriousness of the offense — in this instance, embezzling lump-sum payments from borrowers and lying to the Government National Mortgage Association about the loans' performance to cover his tracks.

In fact, Judge Wolf reasoned that releasing prisoners now during the crisis could help advance the general deterrence of future would-be criminals.

"It may be the pandemic and publicity about the heightened risk if you're in close quarters with people in prison would cause a shorter sentence to have a powerful deterrent effect," he said. "People should dread going to prison now even more than they did before."

But the judge decided not to resolve the issue Wednesday after a two-hour telephone hearing with Pena listening in from the north-central Massachusetts prison camp. He instructed Pena's lawyer and the government to confer by Friday to try to work it out and wants a declaration from the warden by Monday.

The facility has seen two cases of COVID-19 so far, one for a worker and one for an inmate who later passed away, according to prosecutors. The government said FMC Devens has done well to keep the virus from spreading while, outside the prison walls, Massachusetts is among the hardest-hit states in the nation.

Pena's lawyer, Scott Katz, likened that to flipping a coin and calling it correctly five times in a row.

"I don't call them psychic, I call them lucky," Katz said. "The reality is there is likely going to be infections in a camp setting at Devens, even more so than a traditional prison setting where you've got 100 or more men literally spending all of their time together and people going in and out of the camp every day. It's inevitable."

Katz said FMC Devens is the worst possible place to practice social distancing with men sleeping just feet away from Pena and without the typical divided cells that one sees in prisons.

Referencing the state's stay-at-home advisory, he added, "I think anyone who is taking social distancing seriously can attest to the fact that home confinement is not freedom. It's still going to be a very serious restriction on his liberty."

"He would be going back to a nice home in Falmouth, he'd be in the same boat as the more privileged of us who have comfortable places to be," Judge Wolf replied. "But I take your point. He'd be in home confinement until January 2022. Long terms of home confinement do get difficult."

Judge Wolf did express concern about disparate treatment if Pena were released and others were not. Assistant U.S. Attorney Brian LaMacchia noted that point when he said that, on Wednesday, another Massachusetts federal judge denied the compassionate release petition for a convicted white-collar criminal.

LaMacchia also suggested that if Pena is released, a plan should be put in place for him to begin repaying the money taken from Ginnie Mae, which guarantees payments to investors in mortgage bonds backed by federal home loans.

The government has also argued that given the rate of infection inside the facility relative to the rest of the state, Pena, who played for the Cleveland Browns in the 1970s and is a member of the University of Massachusetts Hall of Fame, might be safer in jail.

"My present view is Mr. Pena would get any medical care that he needs most effectively at home," Judge Wolf said, noting that, while Pena would likely not be on an electronic monitor, he would be closely watched by probation to make sure he stays home if he is released from prison, including unannounced facetime calls.

"If he's out of the house," the judge said, "hopefully he's got his toothbrush with him."

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 Janice Carter Brown.

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