Resentencing Motion

Case 5:18-cr-00227-SLP Document 195 Filed 12/15/21 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, )

)
Plaintiff, )
) Case No. 18-227-SLP
v. )
)
JOSEPH MALDONADO-PASSAGE, )
a/k/a Joseph Allen Maldonado )
a/k/a Joseph Allen Schreibvogel )
a/k/a “Joe Exotic”, )
)
Defendant. )
DEFENDANT’S MOTION FOR RESENTENCING HEARING
COMES NOW Defendant, JOSEPH MALDONADO, by and through the
undersigned counsel, and files this Motion for Resentencing Hearing and in
support thereof states as follows:
1. On July 14, 2021, Mr. Maldonado’s sentence was vacated by the Tenth
Circuit Court of Appeals and remanded for further proceedings.
2. Unfortunately, on October 20, 2021, Mr. Maldonado was diagnosed with
prostate cancer.
3. Recently, counsel for Mr. Maldonado reached out to the Court to inquire
about resentencing dates.

4. On December 1, 2021, the Court responded by inquiring as to any medical
reason the Defendant would be unavailable between January 18, 2022 and January
31, 2022 for resentencing.
5. The undersigned and Mr. Maldonado have repeatedly been put at a
disadvantage regarding Mr. Maldonado’s health and any treatment options.
Despite a myriad of requests for medical records, we ultimately confirmed the
diagnosis from the Department of Justice and not the Bureau of Prisons
(hereinafter “BOP”). Then, in an email from December 9, 2021, the undersigned
was informed by the prosecutor that Mr. Maldonado will need weekly radiation
treatments for 7-8 weeks beginning in January.
6. Initially, Mr. Maldonado recognized that his medical providers have
advised against traveling until completion of radiation treatment; however, Mr.
Maldonado was also advised he could attend his sentencing before radiation
without any adverse effect. In fact, given the stress of resentencing, his doctors
advise that might be the best option.
7. Undergoing radiation was only one treatment option presented to him. It
is an option he now declines based on the data and the records presented, including
his Gleason Score, as well as Mr. Maldonado’s underlying health conditions. In
fact, Mr. Maldonado was given three options- “active surveillance of his prostate
tumor, radiation or surgery.” As such, the “recommendation” of radiation was

only one option. Further, Mr. Maldonado has had limited to no access to
physicians since treatment options were presented to him.
8. Attempts at discussion of these recommendations and attempts at
obtaining the records by the undersigned and Mr. Maldonado, himself have been
met with obstinance.
9. On December 12, 2021, Mr. Phillips asked Mallory Brooks Storus,
Attorney at the Butner Legal Center, for, “[m]edical records,” stating, “Given the
cancer, we just want to be up to date as possible. At FMC-FTW, there were times
Joes found out about his medical records through us which we got from the AUSA.
It was slow and unfortunate. We need to update the court and his family about his
stage of cancer and prognosis.”
10. Ms. Storus replied, “the medical records are another issue, and I will
start by saying that an individual inmate is always free to request their own
medical record at any time during their incarceration. That inmate would then be
free to send that medical record to his attorneys as he deems appropriate, however
we cannot send them directly to you at Mr. Maldonado-Passage's request. If you
wish to obtain copies of his medical record you must make that request through
the FOIA process, information for which can be found at
https://www.bop.gov/foia/.”
11. On December 2, 2021, Mr. Phillips asked, “We will get Joe to get us his
records. Is there a process to speak with his doctors?”
12. Ms. Storus replied, “That is likely the best process, though FOIA
requests are also processed as quickly as possible. There is not a process for
outside attorneys to speak with the medical providers for a particular inmate, as it
is not permitted. However, your client is always free to correspond with his
providers if he has concerns about his medical care, or report to sick call if he feels
as though he needs to be seen by our medical staff.”
13. On the date of our meeting, Mr. Maldonado had an envelope of legal
mail that was supposed to be sent to the undersigned’s office since he could not
give it to us directly. As of today, we still have not received it. Furthermore,
despite sending Mr. Maldonado mail specifically marked “Special Mail- Open only
in the presence of the inmate” his mail is not being opened and reviewed in his
presence. The BOP is mandating that it must marked “special mail” with a red
stamp in order to be considered legal mail. New rules, outside of the BOP
Handbook, are being concocted to circumvent Mr. Maldonado meaningful contact
with his attorneys.
14. Meanwhile, the U.S. Attorney’s Office has provided a partial narrative to
the Court: “the defendant has been transferred to Butner for treatment. The BOP
has informed us that the defendant’s treatment will consist of the following: one
injection of Lupron and weekly radiation treatments starting in January for 7-8
weeks. The Clinical Director has further advised that the defendant begins the
radiation treatment, “he should not travel until that 7–8 week course of treatment is
completed, as the treatments will need to be done on the same ‘machine’ and
shouldn’t be done by another facility (unless the other facility has the same
equipment [they] have at Butner). If the treatment is interrupted, it would need to
be restarted. Once the radiation treatments are done, then [the defendant] is fine to
travel, as any other follow-up or regular care he receives could be done at another
medical facility, as needed.” (emphasis added).
15. Despite requests by Mr. Maldonado’s own counsel, the U.S. Attorney’s
Office and the Clinical Director have greater access to Mr. Maldonado’s protected
health information, than the Defendant himself. Furthermore, any request for this
information by his counsel has been ignored. There is a massive disconnect and
prejudice.
16. After review of his records by outside physicians, Mr. Maldonado has
elected to NOT undergo radiation treatment at this time and to elect active
monitoring, an option offered to him.
17. Additionally, if Mr. Maldonado is released within the next 6-18 months,
more advanced options are available to him without the disconnect and
misinformation currently existing in the BOP.

18. Given the declination of radiation and the ability to postpone it pursuant
to his own doctors, Mr. Maldonado does not want his resentencing hearing
postponed any longer.
19. Postponing radiation treatment until after resentencing would not be
detrimental to his health as it is unlikely to affect his prognosis or outcome. See
Exhibit 1- Affidavit of Dr. Drew Pinsky. The undersigned also consulted with a
urologist who is of the same opinion upon review of Mr. Maldonado’s medical
records.
20. The Sixth Amendment affords criminal defendants the right to a speedy
trial. The Tenth Circuit holds that the constitutionally guaranteed right to a speedy
trial also applies to sentencing. Perez v. Sullivan, 793 F. 2d 249 (10th Cir. 1986).
Courts have applied the Barker factors in determining whether or not a defendant
has been deprived of his right: the length of delay, the reason for delay, the
defendant’s assertion of his right, and prejudice to the defendant. Barker v. Wingo,
407 U.S. 514 (1972). In the context of unconstitutional delays before sentencing,
the proper remedy is to vacate the sentence. Juarez-Casares v. United States, 496
F. 2d 190 (5th Cir. 1974).
21. Mr. Maldonado’s sentence was vacated five months ago. Here, the
prejudice is obvious. The delay has caused a detrimental impact on Mr.
Maldonado’s health and to delay it any further would cause additional undue
stress, ultimately putting his health at greater risk. Multiple witnesses have also
passed away pending resentencing and there is little to no justification for the
length of the delay.
22. In weighing the interest of his constitutional rights and his health care
needs, Mr. Maldonado’s constitutional rights take precedent. Mr. Maldonado is
adamant that he is choosing to defer further cancer treatment until after sentencing
and respectfully requests a date in January.
WHEREFORE, Mr. Maldonado respectfully requests that this Honorable
Court enter an order setting the resentencing hearing between January 20, 2022 and
January 31, 2022, request that he be transported to Oklahoma City pending
resentencing, and any other relief this Court deems necessary and just.
Dated this 15th day of December, 2021.
Respectfully Submitted,
/s/ Amy M. Hanna

Amy M. Hanna
Florida Bar No.: 0120471
/s/ John M. Phillips
John M. Phillips
212 N. Laura Street
Jacksonville, FL 32202
(904) 444-4444
(904) 508-0683 (facsimile)
Attorneys for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 15, 2021, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF and a copy hereof has
been furnished to those registered participants of the ECF system.
/s/ Amy M. Hanna

Amy M. Hanna
/s/ John M. Phillips
John M. Phillips
Florida Bar No.:0477575
212 N. Laura Street
Jacksonville, FL 32202
(904) 444-4444
(904) 508-0683 (facsimile)
Attorneys for Defendant
[email protected]
[email protected]
Case 5:18-cr-00227-SLP Document 195-1 Filed 12/15/21 Page 1 of 2
Exhibit 1
Case 5:18-cr-00227-SLP Document 195-1 Filed 12/15/21 Page 2 of 2
Exhibit 1

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Case 5:18-cr-00227-SLP Document 195 Filed 12/15/21 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, )

DEFENDANT’S MOTION FOR RESENTENCING HEARING

COMES NOW Defendant, JOSEPH MALDONADO, by and through the

support thereof states as follows:

Circuit Court of Appeals and remanded for further proceedings.

2. Unfortunately, on October 20, 2021, Mr. Maldonado was diagnosed with

about resentencing dates.

4. On December 1, 2021, the Court responded by inquiring as to any medical

31, 2022 for resentencing.

5. The undersigned and Mr. Maldonado have repeatedly been put at a

disadvantage regarding Mr. Maldonado’s health and any treatment options.

Despite a myriad of requests for medical records, we ultimately confirmed the

(hereinafter “BOP”). Then, in an email from December 9, 2021, the undersigned

treatments for 7-8 weeks beginning in January.

6. Initially, Mr. Maldonado recognized that his medical providers have

advised against traveling until completion of radiation treatment; however, Mr.

advise that might be the best option.

7. Undergoing radiation was only one treatment option presented to him. It

his Gleason Score, as well as Mr. Maldonado’s underlying health conditions. In

tumor, radiation or surgery.” As such, the “recommendation” of radiation was

physicians since treatment options were presented to him.

8. Attempts at discussion of these recommendations and attempts at

met with obstinance.

9. On December 12, 2021, Mr. Phillips asked Mallory Brooks Storus,

cancer, we just want to be up to date as possible. At FMC-FTW, there were times

stage of cancer and prognosis.”

we cannot send them directly to you at Mr. Maldonado-Passage's request. If you

the FOIA process, information for which can be found at

records. Is there a process to speak with his doctors?”

as though he needs to be seen by our medical staff.”

give it to us directly. As of today, we still have not received it. Furthermore,

Handbook, are being concocted to circumvent Mr. Maldonado meaningful contact

with his attorneys.

equipment [they] have at Butner). If the treatment is interrupted, it would need to

medical facility, as needed.” (emphasis added).

monitoring, an option offered to him.

misinformation currently existing in the BOP.

postponed any longer.

19. Postponing radiation treatment until after resentencing would not be

detrimental to his health as it is unlikely to affect his prognosis or outcome. See

F. 2d 190 (5th Cir. 1974).

prejudice is obvious. The delay has caused a detrimental impact on Mr.

length of the delay.

needs, Mr. Maldonado’s constitutional rights take precedent. Mr. Maldonado is

and respectfully requests a date in January.

WHEREFORE, Mr. Maldonado respectfully requests that this Honorable

January 31, 2022, request that he be transported to Oklahoma City pending

Dated this 15th day of December, 2021.

/s/ Amy M. Hanna

I HEREBY CERTIFY that on December 15, 2021, I electronically filed the

/s/ Amy M. Hanna

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