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Law360, New York (July 15, 2020, 10:14 PM EDT) -- The New York federal judge overseeing the case against former South American soccer confederation president Juan Angel Napout on Wednesday seemed reluctant to release him from prison over COVID-19 fears, but postponed the matter for two weeks.
During oral arguments over a renewed compassionate release bid by Napout conducted via teleconference, Judge Chen indicated that she was preliminarily leaning against ordering a compassionate release for Napout.
"I still do not feel compassionate release is warranted at this time," Judge Chen said.
The judge noted that the facility where Napout is incarcerated, FCI Miami, only recently began a stringent lockdown, and the health situation may improve.
Napout was convicted in December 2017 with former Brazilian soccer federation president Jose Maria Marin of agreeing to receive millions of dollars in bribes from sports marketing executives in exchange for their votes to award lucrative television and media rights to major soccer tournaments. Napout was later sentenced to nine years in prison.
Marin, who was sentenced to four years in prison, in March was granted an early release from prison by Judge Chen, who cited in part his health risks amid the COVID-19 pandemic.
Napout, who has previously lodged an unsuccessful attempt at compassionate release, has renewed his bid. He's told the court the situation has worsened since his initial motion for compassionate release in April, in particular at his facility at MCI Miami, which on Wednesday reported 91 active COVID-19 cases among inmates and eight staff members who have tested positive for the coronavirus.
But on Wednesday's call, Judge Chen noted that compassionate release has historically been used in institutions where an inmate is suffering from a deadly disease or imminent death.
"I don't accept the premise that this is not a situation that can be controlled, I don't accept the premise that Mr. Napout, at least at this point in time, is at imminent risk of contracting Covid," Judge Chen said.
The judge punted on the matter for now, and urged the government to facilitate a COVID-19 test for Napout.
The state of Florida late Wednesday reported 301,810 total coronavirus cases, including 72,317 in Miami-Dade County.
An attorney for Napout, Marc Weinstein of Hughes Hubbard & Reed LLP, had told Judge Chen his client's hypertension, combined with his age, pose heightened risk for Napout if he were to contract the virus.
Weinstein said it's unlikely that the end of the outbreak at FCI Miami is near, and that Napout is clearly in a risk category of more susceptible inmates based on the combination of his age and medical condition.
"There is simply no reason to believe that Mr. Napout is in the clear when inmates all around him are turning up sick," Weinstein said.
According to Weinstein, the COVID-19 virus "is raging through FCI Miami."
"There can be no more extraordinary, compelling, and urgent reason for a compassionate release," a defense brief says.
Assistant U.S. Attorney Kristin Mace told Judge Chen that given Napout's age and medical conditions, he isn't considered part of a high risk group, as defined by the Centers for Disease Control and Prevention.
"Even if he is at an increased risk of infection, he will still not be at a risk of suffering significant consequences from that infection," Mace said.
The government contends that little has changed between now and when Napout first requested compassionate release, apart from the defeat of his appeal and the reported cases at FCI Miami, and notes that Napout has only served one-third of his sentence.
"Although the BOP is taking seriously the first reported cases of COVID-19 at FCI Miami, the presence of the virus at the facility does not constitute 'extraordinary and compelling' reasons warranting release for every 'white-collar' criminal over 60, as Napout suggests," prosecutors said in a brief.
Napout and Marin were convicted at trial in the U.S. District Court for the Eastern District of New York, the only trial to stem from a series of arrests of FIFA and international soccer officials beginning in 2015 as part of the wide-ranging corruption probe. The Second Circuit last month upheld their convictions.
In April, prosecutors brought new charges in the case — which has led to dozens of guilty pleas — accusing two former 21st Century Fox executives of leveraging their involvement in a scheme to bribe South American soccer officials to help the media giant secure broadcasting rights to the 2018 and 2022 World Cups.
The parties are due to reconvene for another conference on July 29.
The government is represented by Samuel Nitze, M. Kristin Mace and Keith Edelman of the U.S. Attorney's Office for the Eastern District of New York.
Napout is represented by Marc Weinstein and Nicolas Swerdloff of Hughes Hubbard & Reed LLP.
The case is U.S. v. Napout, case number 1:15-cr-00252, in the U.S. District Court for the Eastern District of New York.
--Editing by Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
