By Jeannie O'Sullivan

Law360 (April 3, 2020, 2:55 PM EDT ) A onetime New Jersey city council candidate serving prison time for trying to bribe voters can't get out of jail because of COVID-19 fears even though he is 68 and has health complications, the Third Circuit ruled Friday, adding that the mere existence of the virus alone doesn't justify release.

A three-judge panel acknowledged in its precedential decision the "risk" posed by the pandemic, but denied Francis Raia's release bid because he hasn't yet exhausted the administrative process for compassionate release through the Bureau of Prisons. After that, the Third Circuit would only be able to consider the matter on appeal, the decision said.

The court made clear that it doesn't intend to minimize the risk of the coronavirus, "particularly for inmates like Raia."

"But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP's statutory role, and its extensive and professional efforts to curtail the virus's spread," the decision said.

An inmate seeking compassionate release must ask the BOP to file a motion with the sentencing court and give the BOP 30 days to respond to the request, according to the decision. Then, if the BOP doesn't respond to or rejects the request, the inmate must pursue the BOP's administrative appeals process.

A real estate developer whose ill-fated Hoboken City Council run took place in 2013, Raia is serving a three-month term at a federal prison in Fairton, New Jersey, following a jury's finding that he conspired to use the mail system to promote illegal activity. Raia was accused of directing campaign volunteers to bribe constituents with $50 to cast an absentee ballot in his favor, according to the decision.

He was sentenced in December to three months in prison, one year of supervised release and a $50,000 fine. The government, which had pushed for a 27-month-sentence, is appealing the sentence.

Raia reported to prison on March 3. In a March 24 letter to the district court, Raia said his age, diabetes, rapid heart rate and Parkinson's disease make him particularly vulnerable to the coronavirus. He said that he submitted a compassionate release request to the warden of the facility where he's incarcerated.

Acknowledging that 30 days hadn't elapsed since the request was made, Raia said the exhaustion requirement was nonetheless "futile in light of the national health emergency."

On March 26, U.S. District Judge William J. Martini ruled that the request had "substantive merit" but sided with the government's argument that the district court didn't have jurisdiction over the matter since it was before the Third Circuit due to the government's appeal.

Representatives for the parties didn't immediately respond to requests for comment.

Chief Circuit Judge D. Brooks Smith and Circuit Judges Thomas L. Ambro and Michael A. Chagares sat on the panel for the Third Circuit.

The government is represented by Mark E. Coyne and Steven G. Sanders of the U.S. Attorney's Office for the District of New Jersey.

Raia is represented by Jenny Chung, Lee Vartan and David M. Dugan of Chiesa Shahinian & Giantomasi and Alan L. Zegas of the Law Offices of Alan L. Zegas.

The case is U.S. v. Francis Raia, case number 20-1033, in the U.S. Court of Appeals for the Third Circuit.

--Editing by Jack Karp.

Correction: An earlier version of this story misstated the number of judges on the panel. The error has been corrected.

Update: This story has been updated to add more information about the decision and Raia's case.

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