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Health issues delay sentencing in arson case

The refugee family that once hoped to make their home in a cozy house in Buffalo’s Old First Ward has moved on, while the case against the man who helped dash their dreams hit another bump on Friday.

The federal court sentencing scheduled for Michael Fijal, 62, was delayed because of Fijal’s health problems. He pleaded guilty 20 months ago to two crimes connected to his role in setting fire to the family’s house on Mackinaw Street in 2011 – an arson that investigators say could have been a hate crime.

Fijal faces up to 33 months in prison when he eventually is sentenced by U.S. District Judge Richard J. Arcara for his conviction on charges of conspiracy to damage and destroy a building by fire. At the time of his plea, it was decided he would have to pay the victim up to $150,000 in restitution, the value of the house.

However, after Fijal entered his guilty plea, he was diagnosed with stage 4 squamous cell cancer. Asked by the judge to explain Fijal’s current medical situation, defense attorney Herbert L. Greenman explained that Fijal’s jaw was surgically removed and rebuilt with bone from his fibula, but that the reconstruction later fractured and more surgery will be necessary.

Greenman also said Fijal has had a portion of his tongue removed, cannot eat solid food, has a tracheotomy and a feeding tube in his stomach. The prognosis, Greenman added, is “guarded.”

Arcara said that, while a medical condition should not be a determinate for a sentence, he was not ready to move forward Friday.

“I want to know all the facts,” the judge said. “They might come back – I hope this isn’t the case – and say he’s got 60 days to live. What am I supposed to do then?”

Assistant U.S. Attorney Timothy C. Lynch had argued in favor of going forward with the sentencing, even if incarceration was delayed. Lynch said that the victim already has waited five years for justice to run its course. The man was in court Friday, prepared to make a statement about what it did to his family to be burned out of their new home in the city where they had sought sanctuary.

And Arcara said he would be considering the family’s plans for the home when he calculates the sentence.

“To me it was a dwelling even though they weren’t living there yet,” he said.

Arcara also said he had received 51 letters from people interested in the case.

Some letters may have been from those in a cohort of about a dozen friends and neighbors who were in court Friday in support of Fijal. Fijal is a lifelong resident of the Old First Ward and was a board member of the Old First Ward Community Association before he was indicted on the arson charges. He resigned from the board shortly afterward.

According to court papers, he had told investigators that a “co-conspirator” was worried about the victim’s plans for an apartment in the duplex and the potential for tenants who are “dirtbags.” Prosecutors say Fijal withdrew money from his personal account at HSBC Bank and paid his co-conspirator before and after the house was torched in May 2011.

The Congolese family apparently had no idea of the animosity among at least some of their neighbors before the crimes.

“What is really scary is that I never talked to the defendant,” the victim said in court papers. “I have never seen him, and I don’t even know what he looks like. The fact that he could do this to a complete stranger is extremely dangerous and scary.”

Because of the delay in sentencing, the victim didn’t speak in court, but, when asked, he said that his family is now doing well.

News Staff Reporter Phil Fairbanks contributed to this report. email: mmiller@buffnews.com