Compassionate Release Not Available to Convict Only Because he is Fat & Diabetic
Barry Zalma
Mar 11, 2024
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ARSON-FOR-PROFIT IS A VIOLENT CRIME OF THE FIRST ORDER
Post 4752
Of the hundreds of different kinds of insurance fraud the most violent and dangerous is an arson for profit. People, including firefighters, die or are seriously injured in the fires. Daryl Evans was caught, tried and convicted of the crimes and is now serving an 183-month sentence for insurance fraud relating to his arson of several Warren, Ohio properties.
Evans moved the USDC in the Northern District of Ohio, pro se, for compassionate release under 18 U.S.C. § 3582(c)(1)(A). In United States Of America v. Daryl Evans, No. 4:18-cr-00717-1, United States District Court, N.D. Ohio (March 6, 2024) the judge determined Evans was not a candidate for compassion.
Evans argued that his medical conditions, including his untreated diabetes, hypertension, heart failure, sleep apnea, obesity, and age, in combination with his rehabilitation efforts, were extraordinary and compelling reasons justifying early release.
ANALYSIS
Generally speaking, once a court has imposed a sentence it does not have the authority to change or modify that sentence unless such authority is expressly granted by statute. However, under 18 U.S.C. § 3582(c)(1)(A), a district court may reduce a defendant’s sentence upon a motion from the defendant if the defendant filed the motion thirty or more days after the defendant sent a compassionate release request to their warden.
If a defendant’s compassionate release motion meets this exhaustion requirement, the court then considers three factors in deciding whether to grant the compassionate release motion.
The court must decide whether extraordinary and compelling reasons warrant a sentence reduction.
Second, the court must ensure that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Finally, the court must consider all relevant 18 U.S.C. § 3553(a) factors.
Evans exhausted his administrative remedies but did not show the extraordinary and compelling circumstances needed for relief. Evans cites his hypertension, heart failure, sleep apnea, obesity, and age as extraordinary and compelling. However, the Court noted these medical conditions of Evans existed at his sentencing. Facts that exist at the time of sentencing are not extraordinary and compelling reasons for compassionate release.
Evans’ Type 2 diabetes, which the Bureau of Prisons (BOP) diagnosed in October 2022, and which the BOP is capable of treating Evans’ diabetes, or other medical conditions. Evans’ medical records showed the court that when he was diagnosed, the doctor recommended a life-style modification and to recheck Evans’ HA1c at a later date. Evans was given educational materials and assented to his understanding and his condition improved.
Because Evans offered no extraordinary and compelling reasons for compassionate release the Court briefly discussed why, even if Evans had shown extraordinary and compelling circumstances, § 355(a) factors stop early release. While Evan’s extensive rehabilitation efforts while incarcerated are commendable, these efforts are insufficient to overcome the severity of his crimes. In fact, Evans ordered three arsons of two properties, which put Warren community members at risk of death or serious injury. In exchange, he received $146,000 in insurance payments (an amount he currently owes in restitution). His petition was refused.
ZALMA OPINION
I have personally investigated several arson fires and advised insurers with regard to many more. Arson-for-Profit is the most vicious and reprehensible variety of insurance fraud. People die in those fires – sometimes the arsonist – including neighbors, tenants, police and firefighters. His sentence was appropriate and its a shame that the USA must pay to feed, house and medically treat Mr. Evans. The punishment is appropriate and he is one of the least likely prisoner in the federal system entitled to compassion.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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Concealing a Weapon Used in a Murder is an Intentional & Criminal Act
Post 5002
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In Howard I. Rosenberg; Kimberly L. Rosenberg v. Chubb Indemnity Insurance Company Howard I. Rosenberg; Kimberly L. Rosenberg; Kimberly L. Rosenberg; Howard I. Rosenberg v. Hudson Insurance Company, No. 22-3275, United States Court of Appeals, Third Circuit (February 11, 2025) the Third Circuit resolved whether the insurers owed a defense for murder and acts performed to hide the fact of a murder and the murder weapon.
FACTUAL BACKGROUND
Adam Rosenberg and Christian Moore-Rouse befriended one another while they were students at the Community College of Allegheny County. On December 21, 2019, however, while at his parents’ house, Adam shot twenty-two-year-old Christian in the back of the head with a nine-millimeter Ruger SR9C handgun. Adam then dragged...
Renewal Notices Sent Electronically Are Legal, Approved by the State and Effective
Post 5000
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Washington state law allows insurers to deliver insurance notices and documents electronically if the party has affirmatively consented to that method of delivery and has not withdrawn the consent. The Plaintiffs argued that the terms and conditions statement was not “conspicuous” because it was hidden behind a hyperlink included in a single line of small text. The court found that the statement was sufficiently conspicuous as it was bolded and set off from the surrounding text in bright blue text.
In James Hughes et al. v. American Strategic Insurance Corp et al., No. 3:24-cv-05114-DGE, United States District Court (February 14, 2025) the USDC resolved the dispute.
The court’s reasoning focused on two main points:
1 whether the ...
Rescission in Michigan Requires Preprocurement Fraud
Post 4999
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Lie About Where Vehicle Was Garaged After Policy Inception Not Basis for Rescission
This appeal turns on whether fraud occurred in relation to an April 26, 2018 renewal contract for a policy of insurance under the no-fault act issued by plaintiff, Encompass Indemnity Company (“Encompass”).
In Samuel Tourkow, by David Tourkow v. Michael Thomas Fox, and Sweet Insurance Agency, formerly known as Verbiest Insurance Agency, Inc., Third-Party Defendant-Appellee. Encompass Indemnity Company, et al, Nos. 367494, 367512, Court of Appeals of Michigan (February 12, 2025) resolved the claims.
The plaintiff, Encompass Indemnity Company, issued a no-fault insurance policy to Jon and Joyce Fox, with Michael Fox added as an additional insured. The dispute centers on whether fraud occurred in...
Insurance Fraud Leads to Violent Crime
Post 4990
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CRIMINAL CONDUCT NEVER GETS BETTER
In The People v. Dennis Lee Givens, B330497, California Court of Appeals, Second District, Eighth Division (February 3, 2025) Givens appealed to reverse his conviction for human trafficking and sought an order for a new trial.
FACTS
In September 2020, Givens matched with J.C. on the dating app “Tagged.” J.C., who was 20 years old at the time, had known Givens since childhood because their mothers were best friends. After matching, J.C. and Givens saw each other daily, and J.C. began working as a prostitute under Givens’s direction.
Givens set quotas for J.C., took her earnings, and threatened her when she failed to meet his demands. In February 2022, J.C. confided in her mother who then contacted the Los Angeles Police Department. The police ...
Police Officer’s Involvement in Insurance Fraud Results in Jail
Post 4989
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Von Harris was convicted of bribery, forgery, and insurance fraud. He appealed his conviction and sentence. His appeal was denied, and the Court of Appeals upheld the conviction.
In State Of Ohio v. Von Harris, 2025-Ohio-279, No. 113618, Court of Appeals of Ohio, Eighth District (January 30, 2025) the Court of Appeals affirmed the conviction.
FACTUAL BACKGROUND
On January 23, 2024, the trial court sentenced Harris. The trial court sentenced Harris to six months in the county jail on Count 15; 12 months in prison on Counts 6, 8, 11, and 13; and 24 months in prison on Counts 5 and 10, with all counts running concurrent to one another for a total of 24 months in prison. The jury found Harris guilty based on his involvement in facilitating payments to an East Cleveland ...
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To Dispute an Arbitration Finding Party Must File Dispute Within 20 Days
Post 4988
EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE
In Howard Roy Housen and Valerie Housen v. Universal Property & Casualty Insurance Company, No. 4D2023-2720, Florida Court of Appeals, Fourth District (January 22, 2025) the Housens appealed a final judgment in their breach of contract action.
FACTS
The Housens filed an insurance claim with Universal, which was denied, leading them to file a breach of contract action. The parties agreed to non-binding arbitration which resulted in an award not
favorable to the Housens. However, the Housens failed to file a notice of rejection of the arbitration decision within the required 20 days. Instead, they filed a motion for a new trial 29 days after the arbitrator’s decision, citing a clerical error for the delay.
The circuit court ...
