Opinion
CR-19-00752-01-PHX-DGC
09-06-2023
United States of America, Plaintiff, v. Andrew James Vilcauskas, Jr., Defendant.
ORDER
DAVID G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
Defendant has filed yet another motion to continue his sentencing based on the fact that he needs another kidney stone ureteroscopy on his right kidney. Doc. 245. He attaches medical records showing that the surgery has been scheduled for October 27, 2023, and a letter from his doctor advising that he continues to experience pain and recommending that he not fly or participate in legal proceedings until after the surgery. Doc. 245-2.
The government calls the motion spurious and urges the Court to proceed with the sentencing. Doc. 247. But the government provides nothing to challenge the legitimacy of Defendant's medical records or his doctor's advice.
The Court, like the government, is frustrated with further delays in the resolution of this case, but has no basis to question the validity of Defendant's claimed medical condition. As noted in a previous order, the Court's staff confirmed the existence of the medical providers relied on by Plaintiff and that they do in fact treat kidney stones. Staff also confirmed the accuracy of the phone numbers and addresses provided by Defendant for the medical providers. Doc. 220.
If the government believes Defendant is malingering or that his medical sources are not real or credible, it should provide evidence to that effect. Assuming authority exists to do so, the Court will permit the government to arrange for an independent medical exam of Defendant concerning his condition. The government should provide a proposal on this issue within 10 days of this order.
In the meantime, however, the existing evidence before the Court requires a further postponement of Defendant's sentencing. The Court will grant Defendant's motion (Doc. 245) and continue the sentencing until December 6, 2023 at 3:00 p.m. in Courtroom 603. The Court will advance this sentencing on the calendar if the government produces evidence showing that Defendant is malingering.
Defendant shall notify the Court at least 45 days in advance of the sentencing of any issues that may interfere with the sentencing, and, if such issues are claimed for medical reasons, shall provide a signed authorization for the government to obtain relevant and confirming information directly from the medical providers.