# Oral argument — United States v. Michael Sarno > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A80600 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** March 31, 2022 ## Text and we'll move on to the third appeal of the day US against Michael Sarno appeal number 21 1963 and we'll hear first from counsel for mr. Sarno Good morning your honors may it please the court my name is John Schwarzinski jr. and I represent Michael Sarno we are here today for an appeal for the denial of the second petition for compassionate release for my client mr. Sarno for the last two years Michael Sarno has been confined to either a hospital bed or a wheelchair and has spent more time outside of a prison facility and inside an outside medical hospital than he has within that prison facility and what is that what prison was he assigned to and what facility has he been in or facilities he was previously in Virginia and it's blinking in my head I think it was a Vista Medical Center that he was transferred while he was in I want to say Petersburg Virginia but I know that that's incorrect he was transferred there he was then subsequently transferred after being in the outset a medical center medical hospital in Virginia then transferred to Springfield where he's in the Springfield Medical Center prison he was then subsequently transferred from Springfield's prison center to another outside medical facility which I was never made knowledge of the whereabouts there for security purposes in Illinois you don't even know if it's in Illinois Missouri so Missouri so Virginia prison Virginia Hospital correct Illinois prison Missouri Hospital Springfield Missouri I believe oh I'm sorry I apologize there is a Springfield Missouri prison than Missouri Hospital and your statement is that the balance the ratio of those is more hospital than prison correct now this was the second denial of the compassionate release the first denial the first petition originally stemmed from the COVID the likelihood of getting COVID or obtaining COVID and as that petition transpired and we were we obtained more medical records from the government it became a realization that our client could not care for himself I had limited access to my client and was never able to get a full understanding of this medical because as many times as I've requested his medical I wasn't able to obtain them but the government and the US Attorney provided those to me and when I was able to see that the likelihood of him needing a above-knee amputation that was significant and that falls under the first step act of a individual's inability to care for himself and that's that's not only the only condition that he was suffering from but that's a significant one and so on February 17th of 2021 the district court held a hearing and the district court was cognizant of the fact that my clients health was significantly poor and the district court had two questions or two concerns I should say and those concerns one was to be addressed by the US Attorney's Office and one was to be addressed by myself as counsel for mr. Sarno the first concern that the district court had was why does a facility such as Springfield exist if the inmate is receiving care and that question in it of itself is wrong and improper because the first step back doesn't ask whether or not an individual is receiving proper care it asks whether or not the individual or inmate himself can provide care for himself not whether or not he's receiving care from that facility so the district court had asked the US Attorney's Office to give him that answer and the concern that he had for me or the defendant is how will mr. Sarno pay for his health care that he would need 24 7 by not resorting to a life of crime through no fault of his own no own or the words used by the district court and so what did we do we provided the court with over 70 pages of evidence of how he was going to not only pay for it but who was going to be in charge of it who was going to be responsible for it we provided a medical trust where an individual was kind enough to support the medical care and treatment pay for his insurance pay for a hospital bed if needed at the home pay for a nursing care to come to the house we supplied numerous affidavits from non members and friends that would come help and assist as well and we also provided letters from medical doctors that were going to oversee the entire treatment for the court and so we answer that court the district courts question as to how he was going to pay for it not resort to a life of crime the government after we filed our supplemental memorandum the government was to file their supplemental memorandum around 14 days after we file ours the government then files theirs and they make a one-sentence statement in their memorandum regarding the medical care and treatment that my client should receive at Springfield is that it provides adequate medical care for mr. Sarno yet they failed to inform the court that my client was immediately transferred from there to an outside hospital so that shows that they couldn't care for him and who was responsible for being transferred to an outside hospital who was paying for that the government the government I would assume so he's either in prison or he's elsewhere and the government is well what's where do you go from here I mean he's either inside some kind of medical facility within the prison system or he's outside getting I assume sufficient treatment somewhere else probably better treatment somewhere else well that's where are we here that's exactly the fact that he could obtain better care and treatment being outside of a prison facility and within the confines of his own home and that's what the First Step Act allows for is that an individual who can no longer provide care for himself meets the criteria for being released under compassionate release so he's better off in prison than out so I'm saying he's better off out of prison with better medical care well with the government paying for it right well no the government wouldn't pay for it we have a family friend of his that is willing to provide the finances to pay for all of his health care and treatment who supplied an affidavit who I even offered to the court to question in that and also the government to ask any questions of because the US Attorney's too good to be true it usually is well the problem is that he's still in touch with the bad guys and seems and that there's some concern about that well that that is a significant issue that I want I'd like to address I'm glad that you raised that question the government made it appear as if he is in contact with these alleged bad guys and the fact of the matter is and up until last week did I not find out that the communication there was no communication between my client these individuals these individuals sent him money on his birthday and on Christmas in total of $700 from one of them and $600 from one of the other individuals and the last dollar amount that was in 2018 my client doesn't have control over who puts money into his commissary account he did not have any conversations with these individuals and the third individual that's referenced mr. in Indino is they try to elude the fact that my clients contact list has a Sam in Indino on there who is a nephew of a former member of organized crime but the government fails to inform the court that mr. in Indino is married to mr. Sarno's niece and is a Chicago firefighter and a well-decorated firefighter so they just try to pollute the record and say that oh because he isn't in the Dino on his list he's a communication for mr. Sarno to then talk to another member of former member of organized crime and we can agree that that might not be the strongest argument that's been offered with regard to the connections the I think the issue though goes more to what constitutional theory mr. Sarno is relying on he's talking about deprivation of access to counsel deprivation of access to the courts a simple due process violation the records are kind of unclear with regard to what constitutional right he's saying he's being deprived of so address that and to address that your honor is when the government filed a supplemental memorandum providing this information about money being received and that he's dependent on these members of organized crime first of all nobody is dependent on anybody when they're in prison we know that he doesn't control who puts money in his commissary account anybody can go on there and do that we know that he's not dependent on anyone secondly is when these allegations were made and unsupported allegations in fact that were just statements in the record there was no exhibits attached there was no documents attached to their motion I immediately filed a motion with the court asking for the court to hold a hearing on this to get in contact with my client because I wasn't able to contact my client because he was just emergently transferred from the prison to the client and discuss these allegations and then report back to the court and explain to the court what really happened and so I'm here now today and up until about a week ago I then found out the dollar amounts and when the last dollar amounts were then provided to my client this was in no way means you know the government tried to allege that this was my clients proceeds from organized crime or what he was entitled to from organized crime and for them to make that argument and and for anybody to believe that I think is absolutely ridiculous why wasn't an adjournment requested I'm sorry why wasn't an adjournment requested because I was I I had just filed a motion immediately because the government had filed their memo on the 7th I had filed mine immediately once I got it and less than 24 hours after we had a ruling so I an adjournment wasn't requested but I did specifically ask for a hearing and for time to talk to my client and address these unsupported allegations that were made and your honor if there's no further questions I'd like to reserve my rest of my time for a ball okay thanks very much mr. Schwarzenegger thank you may it please the court Debra Bonamici on behalf of the United States sorry getting used to it I guess good morning the district court acted well within its discretion in determining that a sentence reduction was not warranted here given the seriousness of the defendants offenses and his extensive history of Chicago outfit related criminal conduct and convictions the that the defendants medical condition constituted an extraordinary and compelling reason for considering a sentence reduction but reasonably determined that such a reduction would be inconsistent with the sentencing factors set forth in 3553 a most notably the need for the sentence to promote respect for the law to afford general as well as specific deterrence and to determining that the defendant despite his medical condition was capable of committing crimes if he were released and that he could do so by directing others and the court reasonably found that his history is criminal history particularly the fact that he committed the instant offense soon after completing his sentence which he received on a separate federal conviction for outfit related conduct demonstrated that he did pose a risk of recidivism and in essence was motivated to commit further offenses the defendant or the district court or the defendant raises the or makes the argument that the defendant has spent more time in the hospital than in prison that is that's not accurate there was a period of time shortly before this but in the two years that immediately preceded the motion practice in this on this in this or before the court there was a 20 there was a 24 month period where that was true I don't think that's true now but I don't have the specific dates to provide the court at this time that the court would like to see those I can attempt to obtain those from the Bureau of Prisons and provide them to the court but I don't think that's true nor did the medical records support the notion that the defendant is likely to receive an above-knee amputation amputation there's nothing in the medical records that I see that supports that comment with respect to the defendant's con the defendant's inability or other counsel's inability to speak with his client that that argument it the key point I think judge Brennan is the one that you raised which is that an adjournment was not sought the district court did not plainly err by construing the defendants April 7th filing as a request for a continuance it didn't look a thing like a request for a continuance and to any extent that you could you could construe it it's certainly not plain error that the court did not do that the defendant even to this date does not has never denied the fact that the individuals identified by the government were on the defendants contact list or that he received money from from certain of them in fact what the defendant art has argued here and also argued to the district court is that those contacts were innocent and that the amounts of money he received were minimal those arguments were made to the district court with or without any contact with with his client and so regardless of the constitutional theory presented which I the government agrees is unclear regardless of that there the defendant has shown absolutely no prejudice as a result of receiving or being quote-unquote unable to respond to the government's comments of the court's reliance the district court was entitled to rely on such evidence particularly given the specific nature of the defendants crimes and criminal history in this case that is their relation to the Chicago outfit this isn't just a question of identifying people who have been involved in some crimes before or some other crimes or you know we're talking about identifying individuals that who have been who some of whom have multiple convictions before this court for outfit related criminal conduct we grant that identifying a nephew or a you know a relative of one of those people is less strong than the others but one of the people identified with the government had just pled guilty to criminal conduct similar to the conduct that the defendant had been convicted of and was also a member of the Chicago outfit so excuse me but at this point he's served 12 years out of 25 is that correct correct something like that yeah so he's got he's got another 12 to go and the question I guess is what is next for him if it is his capacity insufficient enough where he has to have I'll call it constant care medical care well his his current condition evidence regarding where he stands right now it's not before the court there he the periods at which or during which the motion practice went on or involved a period where he had gone to the hospital a couple of times and developed in one in one instance a MRSA infection which was pretty serious and and he needed to be infection free for a period of time before he could have any kind of knee operation so it it only caused him to suffer but it caused him to have to delay for the treatment for his other medical conditions so those were serious but there's no reason to think that his condition at this point hasn't improved at least somewhat from that position but maybe maybe this compassionate stuff is mythical there's nothing compassion might be more for the government to get rid of well because a lot of money well there's no joking about that but it does it just does seem that he's better off in prison than being turned loose and then the only way where he can go is to these former friends if you want to call him that that are involved in criminal activity well that the district court was concerned about that was also concerned about the idea that a defendant could spend his entire life committing crimes on behalf of the outfit and then when he got when he when he was finally caught at an at an older age or caught again I guess in this defendant's case at an older age that he could you know use his his frailty in and his old age as being or you know whatever his whatever medical conditions he developed at that point as a reason to escape punishment and the courts particular particularly stated on more than one occasion that his particular concern about that was the the its effect on general deterrence and and that's reasonable minds can differ with respect to how these different factors should be weighed in any particular case but the district courts weighing of the factors here was clearly well within its discretion and the other point to be noted and I hate to say it in this case given all the ink that's been spilled on it already but the to my knowledge there is no other than a complete abuse of the system I don't think that there's a limit on the number of compassionate release motions that can be filed so if it were the case that his condition were to seriously to get seriously worse I mean he could file another motion he took advantage of that in this case and and he can do it again so here there's no the district courts assessment was a reasonable one and the defendant has provided no basis for a reversal miss Bonamici one I guess one of the questions this raises for me apart from the question about how many of these can someone file and I don't see a limit either but as I understand the compassionate release provisions of the first step act they're highly discretionary for it's not an entitlement it is a it is an option in essence provided to a district judge and there's no real provision about procedure for that is what does the district judge what is there a particular procedure that the defendant is entitled to or for that matter the government is entitled to in terms of being heard presenting evidence etc etc it seems to be pretty much people are improvising and working on general principles of fairness and due process but but it's all pretty all pretty loose you've seen I'm sure far more of these things at the district court level and you know now that we've issued our decisions on the kovat vaccines we're not seeing as many of those so I would just be interested in your thoughts about procedures as district courts cope with the volume of these things well I think I agree with you there aren't specific procedures laid out in the statute obviously but I do think that the district courts are generally and properly proceeding in these cases as with a view that these are motions for sentence reductions they are discretionary that means that a substantial amount of discretion is appropriately afforded the district court they also vary quite a bit and I would say that to to set down a set of cases or motions that we see some that are on their face inadequate under the statute you know on one end of the spectrum and some that present circumstances you know substantial enough that the government joins the motion or you know agrees to it so there's a huge variety and some some motions I'd say maybe my own experience which is all of the experience in the district court in my own experience is that a lot of the motions that we see are a mixture of the two you know maybe not so many on this end but they're a mixture of possibly relevant appropriate bases for considering an extraordinary and compelling you know condition or reason having been met and mixed with things that are clearly not and and frankly and thank you as your cases have come down that that's become clear and clear you know where the lines should be drawn and that's actually made litigation of these motions of district court easier so and I and I do think it it it takes care of that problem with respect to evidentiary issues I mean just as in I mean there would be no reason to apply evidentiary rules more earnest than those applied at an under that assumption although sometimes they have requested you know evidence where where they feel where a district court feels it's necessary and that evidence is presented to the court but in this case we would say that not none of the procedures followed in this case in fact I would I would say that the court went out of its way it held melted multiple hearings that allowed multiple filings it basically allowed anything and it received anything that anyone was willing to wanting to file at any time and there definitely was due process offered in this case without doubt and there and there was no other violation that we could see so for all these reasons unless the court has further questions we would request that your honors affirm the district courts judgment okay thank you very much mr. Bonamici Mr. Schwarzynski rebuttal your honor I would just like to address a couple things that my friend miss Bonamici had said there was not due process towards the end of this hearing at all your honor and in fact counsel had just referenced that I was able to argue in front of the district court about these minimal amounts of money that were sent to my client from these two former outfit members I was not able to do that I filed a motion asking for an extension of time and asking to talk to my client right after that motion was filed less than 24 hours after the court ignored it and issued its order I was never able to address that with the district court second of all counsel had mentioned that there's nothing in the medical record that states that my client is going to need an above-knee amputation again that is false it's cited in my brief and its record 1036 that it was in my previous motions and in the record that your honors have has experienced an amputation he has not experienced the amputation yet there are other medical issues that they are trying to care for at this time he's been in a on a head a catheter for the last two years so they're working on with their urologist currently and judge man and you had made a comment about if he is released to go back to these these bad guys are these friends for money and and we've answered that question with the district court we've provided the evidence of that we have a very very generous friend of his and family who is very well respected who owns a very very successful business who is by no means involved in any sort of organized crime and I've offered him to the court and the court had not done anything about this but for this man to offer this kind of money and many people in the government themselves have said if it sounds too good to be true it is that's not the case this type of money for this individual is nothing for him compared to what it would be for us and he's doing it out of the goodwill of his heart for a childhood friend and that's the question this is a childhood friend who's grown up and has a lot of money and he's helping out his childhood friend who's been in prison for 12 years correct yeah okay and his affidavit was it's very evident that my client's health is deteriorated and the First Step Act I know my time has run out but I would just like to mention I know the First Step Act has allowed for an individual who can no longer care for himself but my client went into prison well over 350 pounds he is now well under 200 pounds if that doesn't show that he's a shell of a man that he previously was and that all his primary goal is is to get back home for whatever time is left with his family and to try to get his health better that's what he's going to do all right thanks to both counsel the case is taken under advisement --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A80600. Public record. Not legal advice.