By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed the District Court’s denial of a motion by an inmate for compassionate release based on the COVID-19 epidemic, spurning his contention that’s it’s only fair to let him go free because his co-defendant/father, who received the same sentence as he, was allowed to go home early.
Thursday’s memorandum opinion came in response to the appeal of Alexander K. Martinez—who admitted complicity in a workers’ compensation fraud scheme causing losses in excess of $3.5 million—from an order by District Court Judge Cynthia A. Bashant of the Southern District of California denying him the lenity she had granted to his parent and co-conspirator, Ruben M. Martinez.
Prosecutors had termed the enterprise in which they were involved “one of the largest insurance bribery schemes ever uncovered in San Diego County.” Both father and son pled guilty to a single count of mail fraud and each was sentenced by Bashant to two years and nine months in prison.
On Aug. 6, 2020, Bashant ordered that the elder Martinez be released after serving slightly more than a year of the sentence, resentencing him to time served. She explained:
“The Government generally agrees that Mr. Martinez is facing ‘extraordinary and compelling’ circumstances such that the Court may reduce his sentence.... The facility where he is being housed, despite many precautions, has suffered an outbreak of COVID-19. Even with extraordinary precautions, it is difficult, if not impossible, for a custodial facility to provide the conditions that protect the inmates from the spread of the disease once it takes hold. Furthermore. Mr. Martinez, at sixty-three years old and suffering from Type II diabetes, is at risk if he were to contract the disease.... Therefore, the Court agrees Mr. Martinez has shown extraordinary and compelling reasons for his release.”
On Nov. 29, 2020, San Diego attorney Knut S. Johnson presented a motion urging equal treatment for Alexander Martinez. He pointed not only to Bashant’s release of the petitioner’s father, but also to the Ninth Circuit’s opinion relating to a prime culprit in the case, Los Angeles radiologist Ronald Grusd, which said that the loss caused by the scheme—the extent of which affected the sentence—might have been exaggerated based on a failure to take into account billings that related to medical services actually rendered.
On remand, Grusd—initially sentenced to a prison term of one day shy of 10 years—was resentenced to four years in prison. (He had been released pending resentencing and had not, as of the time the motion was filed on behalf of Alexander Martinez, returned to prison.)
Johnson argued in the motion of that the dispensation accorded to the father should be taken into account, as well as the Ninth Circuit’s opinion in Grusd’s case having established that the prosecution had’ over-stated the actual loss, meaning that his client’s sentence was excessive. The defense lawyer also stressed the fact of Alexander Martinez’s testimony against Grusd and another key conspirator.
‘Unusual Circumstances Claimed
Johnson maintained that it “is unusual for the court to reduce one co-defendant’s sentence by 60%”—that of Grusd—“and to release another,” Ruben Martinez, “shortly after incarceration because of a global pandemic,” continuing:
“Yet more extraordinary, in this case the only defendant who is now in custody (Alexander Martinez) testified against the two lead defendants (who the sentencing courts sentenced to roughly what Alexander received). And even more. Alexander (again, the only incarcerated defendant) is the son of the co-defendant this Court ordered released because of the pandemic and the changed guidelines. Those circumstances are not just extraordinary, they are also compelling. This Court should grant this motion and release Alexander.”
At the Gross’s time of the motion, the petitioner was age 42—had contracted yet shed COVID-19—and had a pre-diabetic condition, not actually suffering, as his father did, from diabetes.
In denying his motion, Bashant said:
“Although Mr. Martinez does not argue that his medical condition warrants compassionate release, he does make reference in passing to the pandemic. Admittedly, COVID-19 has taken its toll on those in custody. However, fortunately for Mr. Martinez, he is young and seems to have weathered a bout of the disease without symptoms. At this point, the country in general and the [Bureau of Prisons] in particular are finally able to deal with the risk by vaccinating the population. Nothing about Mr. Martinez’s medical condition or the current state of COVID-19 constitutes ‘extraordinary and compelling reasons’ that would justify releasing Mr. Martinez early.”
If the amount of loss caused by the scheme, to which Alexander Martinez stipulated, was over-estimated, that fact has no bearing on an application for compassionate release, the judge set forth.
Affirming, a Ninth Circuit panel said:
“The district court explained that compassionate release was not warranted because—unlike his co-defendant who chose to go to trial—Martinez ‘solicited kickbacks for referrals,’ stipulated to the amount of loss behind the alleged miscalculation in his plea agreement, and waived his right to appeal and to collaterally attack his conviction and/or sentence. The record supports the district court’s conclusions, and the district court did not abuse its discretion by denying Martinez’s motion for compassionate release.”
The case is United States v. Martinez, 21-50113.
Copyright 2021, Metropolitan News Company