By Stewart Bishop

Law360, New York (April 10, 2020, 5:40 PM EDT ) A New York federal judge on Friday declined to grant a compassionate early release from prison in light of the COVID-19 pandemic to former South American soccer confederation president Juan Angel Napout, but left open the possibility of letting him out on bail pending appeal of his FIFA bribery conviction.

During a morning teleconference with U.S. District Judge Pamela Chen, Napout, 61, was denied an early release on the grounds that he had not exhausted his administrative remedies with the Bureau of Prisons.

Napout was convicted in December 2017 along 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, was ordered released by Judge Chen in March, who cited the 87-year-old's advanced age, deteriorating health and risk of grave consequences from the coronavirus outbreak.

In light of the pandemic, Napout asked the court to sentence him to time served or release him to home confinement in Miami for the next six months. Alternatively, the former soccer official asked to be let out on bail while his appeal plays out.

Judge Chen said that a sentencing reduction was off the table.

"The compassionate release ... I'm not granting that application," Judge Chen said. "A, I think the exhaustion requirement is a mandatory one, but B, even if I were inclined to create an exception for it as some judges have done, I wouldn't find his circumstances compelling enough."

An attorney for Napout, Marc A. Weinstein of Hughes Hubbard & Reed LLP, had told Judge Chen that Napout's advanced age places him at a higher risk of death if he were to contract the coronavirus, which he said has spread rapidly to at least 45 Bureau of Prisons facilities. Weinstein also noted that social distancing is an impossibility in prison.

"We're not saying he has to get out because he is more susceptible to getting the virus, but that he is much more susceptible to death," Weinstein said.

Assistant U.S. Attorney Samuel Nitze told Judge Chen that Napout had identified no circumstances that differentiate himself from any other inmate, which would qualify him for compassionate release.

Nitze also cited the ongoing efforts of BOP to protect inmates and prison staff from the virus, and said no cases of the illness had been reported at FCI Miami, where Napout is housed, .

Judge Chen left open the possibility of releasing Napout on bail pending the result of his appeal, however she expressed concern about his flight risk. While acknowledging the defense argument that Napout has been a model prisoner who has complied with court orders, the judge said that having been in prison, Napout would be hard pressed to return if he were given the chance to get out.

"If anything, I think the risk is increased," the judge said.

Napout himself spoke on the conference call, telling Judge Chen at the end of the proceeding that he would not flee if released on bail.

"I'm not going to be a fugitive, your honor," Napout said. "There is no way I would run. I understand the prosecutors have this idea of me, but that is not in my nature."

Napout and Marin were convicted after a monthlong trial in the U.S. District Court for the Eastern District of New York, the only trial to stem from series of arrests of FIFA and international soccer officials beginning in 2015 as part of the wide-ranging corruption probe.

The Second Circuit in November heard oral arguments on their appeals, but has yet to issue any decision.

On Monday, Brooklyn federal prosecutors brought new charges in the case, 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 government is represented by Samuel P. Nitze, M. Kristin Mace and Keith D. Edelman of the U.S. Attorney's office for the Eastern District of New York.

Napout is represented by Marc A. Weinstein and Nicholas 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 Zachary Zagger. Editing by Peter Rozovsky.

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