Opinion
1:04-CR-5234 AWI-3
11-30-2021
UNITED STATES OF AMERICA, Plaintiff v. CLIFTON ELIAS HOWARD, Defendant
ORDER REGARDING DEFENDANT'S REQUEST FOR MEDICAL STAFF TO MAKE THEMSELVES AVAILABLE TO DEFENSE COUNSEL (Doc. No. 362)
Currently pending before the Court is Defendant's motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Recently, the United States filed supplemental information regarding Defendant's medical condition. The supplemental information includes a declaration from Allenwood prison's chief medical officer, Dr. Buschman. The supplemental information indicates that Defendant had mild pneumonia and is progressing well and that he does not use an ambulatory aide, i.e. a wheelchair. Additionally, the supplemental information from the United States indicates that Defendant's overall condition is such that the Allenwood prison can no longer properly house/care for Defendant and that the process to transfer Defendant to a different facility, a Federal Medical Center, is underway.
In response to the United States' supplemental information, Defendant filed a motion for access to the medical staff and medical records at Allenwood prison. Defense counsel represents that, despite Defendant's authorization, all calls made by defense counsel are referred to the legal department. Defense counsel represents that the prison's conduct is interfering with her ability to represent Defendant and refute various representations.
The United States has filed an opposition to Defendant's motion for access. The opposition indicates that the United States has provided all requested medical records directly to counsel. The United States argues that, although Defendant appears to disagree with the content of the medical records, he has had the same access to his medical records as the government.
After consideration, the Court will not grant Defendant's motion. The United States has submitted current medical records for Defendant and represented that defense counsel has all currently available medical records. Because defense counsel has the medical records, she should be able to discuss the matter with Defendant. In the course of those discussions, defense counsel should obtain sworn declarations from Defendant. The Court has been willing to accept representations by defense counsel as an officer of the court given the nature of the information being conveyed and a situation in which time appeared to be of the essence. However, the supplemental information disclosed indicates that Defendant is being treated, his immediate illness is not as dire as once feared, and that procedures to transfer Defendant to a different facility have been initiated. The Court will give Defendant the opportunity to respond to the United States' latest opposition (Doc. No. 359), including recent medical records and the declaration of the Allenwood medical officer, Dr. Buschman. If Defendant wishes to refute any representations, then Defendant should at a minimum file a declaration under penalty of perjury that addresses his medical condition and any material disputes. Further, as part of addressing the United States' supplemental information, Defendant should address the representation that the process for transferring him to a new facility is underway and how that transfer would affect his motion.
Finally, prior to the filing of any further motions in this case, the parties are strongly encouraged to meet and confer to attempt to resolve any further disputes through stipulation and without Court involvement.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion for medical staff to be made available (Doc. No. 362) is DENIED; and
2. As soon as possible, but in no event later than 21 days from service of this order, Defendant shall respond to the United States' supplemental opposition (Doc. No. 359).
IT IS SO ORDERED.