The opinion of the court was delivered by: FRANKEL
On July 1, 1976, these two defendants were found guilty by a jury on all counts of an indictment charging a course of grossly fraudulent conduct entailing losses in the many millions of dollars to uncounted numbers of investors. On September 7, 1976, reckoning with a host of factors - inter alia, that these were first convictions, that there were favorable circumstances in both careers, that defendant King seemed clearly the more culpable, that the crimes were serious and that neither defendant exhibited any semblance of remorse or contrition - the court imposed, as always, the least sentences consistent with the ends of justice, a year in prison for Mr. King and seven months for Mr. Boucher, each term to be followed by three years' probation.
The defendants were freed on bail pending appeal. The appeals, reflecting the length and vigor of the trial, took some time. The convictions were affirmed on July 22, 1977. 560 F.2d 122. Certiorari was denied on October 31, 1977. 434 U.S. 925, 98 S. Ct. 404, 54 L. Ed. 2d 283, 45 U.S.L.W. 3293.
In the meantime, on November 12, 1976, defendant has suffered a stroke with temporary right-side paralysis, loss of the ability to communicate, and other damage. He recovered in notable measure, but will never recover completely, and requires continued therapy. On that basis, recounting in detail the course of his illness and his therapeutic needs, Mr. King moves under Fed. R. Crim. P. 35 to have his sentence reduced to probation or, alternatively, to have specified a place of confinement where his medical needs can be met as adequately as they are being served outside of prison. In separate papers, on grounds less compelling in themselves, Mr. Boucher also moves for a reduction.
There is no question that Mr. King suffered a serious stroke and, equally, no question that he has, as one of his doctors says, shown "remarkable improvement." Fortunate in one important respect, he has had the benefit of an extraordinary amount of seemingly magnificent (and costly) medical care, with numerous doctors and a large number of therapists involved in his treatment and/or examination for purposes of the instant motion. It seems plain that confinement in prison creates a prospect for Mr. King of adverse consequences more severe than those suffered by the average defendant suffering such a fate. But this cannot be decisive in itself. The young athlete may suffer in prison agonies inaccessible to aged felons. The degrees of misery range widely, exceeding our knowledge, and extending, it appears, to those for whom the relief from autonomy is a boon. The court is called upon here to weigh an array of factors: the degree, necessarily conjectural, to which prison will or may be hurtful, the time since the stroke and improvement since then, the relative severity of the sentence and wider impacts of its reduction at this late date, and the fact that officials in the Executive Branch are bound to care for prisoners and guard against or remedy unduly severe consequences of imprisonment.
The court has paid special and close attention, naturally, to the estimates and prognoses of Mr. King's several doctors. The neurological surgeon, Dr. Robert E. Edgar, who directed his treatment from and after the stroke, wrote a detailed letter on November 16, 1977, for purposes of this motion. At that time, a year after the stroke, Dr. Edgar described the original symptoms, Mr. King's "remarkable progress," the remaining sequelae and need for treatment, the current therapeutic regimen, and his prognosis. As to the original condition and progress under treatment, he wrote:
"Mr. King experienced a stroke involving the dominant half of his brain approximately one year ago. This resulted in his complete inability to speak, read, write, view television, perform mathematics, and his partial inability to understand the spoken word, conceptualize complex ideas or abstractions, partial loss of motor strength of the right side of the body and concomitant loss of sensation.
"During the first period of time following this stroke he made remarkable progress in certain areas and either none or limited progress in other areas of brain function. His ability to speak has improved remarkably, although he still exhibits anomia, word substitution, halting speech and other elements of expressive difficulty. His ability in reading, writing, mathematics, complex ideation and abstraction has not improved much beyond the ten percentile range as compared with the dramatic improvement in his expressive speech. His sensory loss, motor loss in the right arm and leg and body have not improved by comparison.
"Despite this current plateauing, he will without doubt improve further if current treatment is allowed to continue since he has completed only approximately one third of the treatment time required at a minimum in this type of therapy program to permit maximal benefit from the standpoint of brain function. The current therapy program has been amazingly successful if one is aware of the fact that an individual with this type of stroke, a so-called "Gerstmann's Syndrome" rarely ever improves to the point Mr. King has already reached. From a medical point of view, his continued improvement will be a function of continuation of his current regime."
A lay reader might imagine a trace of inconsistency between the observation that Mr. King had already improved to a rare degree considering his disease and the prediction that "his current regime" would cause still further improvement. But that may be a mistake; it is sufficient to note this, observe the lack of a fully persuasive explanation, and pass to concerns of clearer consequence. Dr. Edgar's letter proceeds further as follows:
"Mr. King's current therapy regime could be described as three-pronged. One element is a structured rehabilitation therapy program under the formal control and suspices of both the Craig Rehabilitation Institute in Englewood, Colorado, and the Rusk Institute of Rehabilitative Medicine in New York City. Another component is the individual rehabilitation efforts of Mr. King himself made possible by his apparent unique capability, intensity of effort, desire to improve, and his inner reaction to his uniquely complex environment and its associates [sic] stimull. The third element is the natural reorganization and healing of the brain, both in the area of stroke and other areas.
"All three elements of rehabilitation therapy are completely interwoven and disruption or alteration of any element would probably result in permanent damage to Mr. King's brain function and his inability to recover further."
Notwithstanding that flat certainty of the essentiality of all three elements, the court was advised at oral argument of this motion, on January 9, 1978, that two of the prongs have been eliminated: Mr. King no longer receives therapy at any hospital or medical facility, but does, according to the papers and counsel's description, spend six to eight hours daily being assisted to improve by family and friends (not professional therapists). The papers and counsel also stress that such attentions, given in affectionate and familiar circumstances, are highly useful to Mr. King, and the court has no reason to doubt this.
Proceeding from his appraisal of the combined therapeutic elements last November and their indispensability, Dr. Edgar concluded ...