By Zachary Zagger

Law360 (July 21, 2020, 11:25 PM EDT ) A New York federal judge on Tuesday rejected a request by the former president of the South American soccer confederation, Juan Angel Napout, to be released from a Miami federal prison despite testing positive for COVID-19 over the weekend.

Napout, 62, tested positive for the virus on Sunday after U.S. District Judge Pamela Chen last week asked the prison to test him even though he was asymptomatic amid an outbreak at FCI Miami, where he is serving a nine-year sentence for his conviction in the government's FIFA corruption crackdown.

Napout had asked the court for a compassionate release or home confinement, arguing he was at heightened risk from the coronavirus given his age and because he has hypertension. Nearly 100 inmates at the facility have tested positive for COVID-19 this month.

Judge Chen denied the request during a hearing via teleconference, saying that even with his age, hypertension and the fact that he actually contracted the virus were not extraordinary or compelling reasons for an early release. In her ruling from the bench, she noted that compassionate release before the pandemic was more limited.

"Compassionate release was intended before COVID to situations that were more clearly dire or more life-threatening," Judge Chen said. "While I am not saying that courts who have applied it more liberally because of the unknowns ... are wrong, it is just that I ... approach this analysis from a more historical perspective and one more consistent with the guidelines."

Judge Chen said despite the unknown risks and complications of COVID-19, the data does not show that Napout is facing such a risk that cannot be treated by the prison. The judge cited data from the U.S. Centers for Disease Control and Prevention website on cumulative hospitalization rates that showed only 0.17% of those 50 to 64 who have contracted the virus have been hospitalized, though she did note other data showed that hypertension was a significant factor in whether someone ended up in the hospital.

It was not clear Tuesday whether Napout, who is being quarantined within the prison, is suffering any serious complications from the virus.

The judge ordered the prosecutors to report back to her in a week on whether Napout's condition has worsened and told Napout's attorneys they were free to renew the motion if things change.

Napout, the former head of the organization known as CONMEBOL, has served nearly three years of a nine-year prison sentence for his role in a bribery and kickback scheme tied to the awarding of television and marketing rights to major South American international soccer tournaments.

An attorney for Napout, Marc Weinstein of Hughes Hubbard & Reed LLP, told the judge during the hearing that the circumstances of his sentence had changed, as now he is now suffering from COVID-19 in a facility where there is a significant outbreak. He said the combination of his hypertension and the coronavirus put him at a greater risk of complications and has been found to be sufficient for compassionate release in other cases. 

"Absent of him being on a deathbed, in our view, he has presented extraordinary and compelling circumstances," Weinstein said.

But federal prosecutor Kristin Mace argued that the pandemic is affecting and causing hardships for everyone inside and outside of the prison, and the risks were not sufficient to warrant Napout's early release.

Judge Chen pointed to testing numbers showing that at least 95 of the 780 inmates at the Miami facility have tested positive for COVID-19 since July 1, though Weinstein suggested there could be more as it appears the testing rate has has slowed.

According to the U.S. Federal Bureau of Prisons website Tuesday, a total of 96 inmates and 10 staff at the facility have tested positive for COVID-19, though it was not clear whether those numbers included an additional 213 inmates held at a separate "camp."

This was Napout's second attempt at a compassionate release in recent months. Napout's co-defendant, former Brazilian soccer federation President Jose Maria Marin, was granted an early release from prison in part due to his health risks amid the coronavirus pandemic.

While Judge Chen said Marin is perhaps the closest analog to Napout in terms of his crime and sentence, she said Marin's situation was different given that he was 87 and had served three years of his shorter four-year sentence.

Napout and Marin were convicted at trial in 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.

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.

--Additional reporting by Stewart Bishop. Editing by Breda Lund.

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