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Law360 (April 22, 2020, 4:58 PM EDT ) A 70-year-old former NFL lineman in prison for embezzling $2.5 million asked Wednesday for his release from a Massachusetts prison described in a separate suit as a COVID-19 "powder keg," saying his age and race make him more susceptible to the disease.
Robert "Bubba" Pena was sentenced last April to 32 months in prison after pleading guilty to stealing payments on home loans that were sold as government-backed securities. For the past six months, he's been held at the Federal Medical Center in Devens, Massachusetts, where he sleeps just a few feet away from other inmates, shares common toilets and showers and eats in a small dining room with other inmates, according to his motion for compassionate release.
"While every person is at risk, as a 70-year-old black man with numerous health issues, Pena faces an even greater risk of serious illness and death if he contracts COVID-19," the motion states. "And while most Americans can try to protect themselves — confining themselves to their homes, distancing themselves from others (and wearing masks and gloves) when they venture out — Pena cannot."
The motion points to research showing that black Americans are dying at a disproportionately high rate from the virus, likely 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 lost her father to COVID-19 days ago.
Pena, a member of the Cleveland Browns in the 1970s, filed his motion after a petition in a separate case last week sought release for enough of the elderly inmates at the federal prison to make social distancing possible. Right now, Pena said practicing any sort of social distancing is not practical.
"The camp inmates share 12 toilets, 12 sinks, and 12 showers, which are cleaned by inmates just twice daily, with no assurance they are properly disinfected," the brief states. "Similarly, the inmates share four telephones and five computers, which are not cleaned between users."
It is also difficult to practice proper sanitizing or take necessary precautions in the facility, a former military base located 35 miles northwest of Boston, the motion says.
Soap is available for purchase, the filing says, but sometimes it runs out. "Pena recently went several days without soap," the document states. "Approximately three weeks ago, Pena received three 'flimsy' masks; on April 15, he received three more. In other words, the camp inmates are provided approximately one 'flimsy' mask per week."
A government spokeswoman declined to comment, and Pena's attorneys did not immediately return comment requests Wednesday afternoon.
During an emotional sentencing hearing nearly a year to the day before the filing of Pena's motion for release, his earnest allocution shaved more than a year off his sentence, according to U.S. District Judge Mark L. Wolf.
Prosecutors asked for 50 months behind bars that day. They 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.
"It was my fault," Pena said. "I owe an apology to Ginnie Mae, the government, this court, the people who put trust in me. That's a fact."
"I don't think the government recommendation of 50 months was unreasonable," Judge Wolf said. "My perception of you, after hearing you speak, is that 32 months is sufficient."
Pena was also part of a huge concussion lawsuit against the National Football League. In 2016 he was inducted into the Hall of Fame at the University of Massachusetts, where he played collegiately.
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.
-- Additional reporting by Brian Dowling. Editing by John Campbell.
For a reprint of this article, please contact reprints@law360.com.
