The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
The Court has before it defendant's motion for dismissal of the indictment and for postponement of trial due to the physical condition of the defendant. It is defendant's contention that the prosecution of him would be "life threatening" due to the state of his health; that his physical condition "does not allow him to go through with the defense of his case and would preclude his assistance in his own defense".
Defendant in support of his motion attaches an affidavit of his attending physician, Dr. Robert J. Agostinelli of Rochester, New York, in which he stated that he had been treating defendant following an aneurysectomy of his abdominal aorta and that he "has had cardiac difficulties". Recently he has noticed some increase in shortness of breath and fatiguability. At the Doctor's suggestion on February 1, 1980, defendant underwent a treadmill test under the supervision of a local cardiologist and the test results were positive for and indicative of moderate, severe two or three vessel coronary artery disease. In his opinion any physical or psychological factors which will stimulate or cause angina will be detrimental to defendant and very possibly induce either angina, cardiac arrhythmia and/or myocardial infarction which would be "life threatening". He opined that psychiological stimuli are just as detrimental to defendant as physical factors and will precipitate problems regarding his cardiac status.
Upon oral argument of the motion the Government agreed to and indeed suggested an impartial medical examination and report to the Court. Counsel for defendant readily agreed. At the Court's request, the counsel for Government and defendant jointly designated Dr. Martin Black of Syracuse, as an impartial physician to examine and report.
Dr. Black examined defendant on April 18, 1980, and in his report of April 28, 1980, made a diagnosis of (1) chronic lung disease; (2) possible ischemic heart disease; (3) chronic renal disease-probable nephrosclerosis; (4) peripheral vascular disease; and (5) Status post abdominal aortic aneurysm resection. Although Dr. Black felt his disability was permanent without chance of improvement, he did not feel it would prohibit him from court appearance, but did suggest court sessions not be prolonged and that a physician be in attendance if the same could be arranged.
Thereafter counsel for defendant requested an evidentiary hearing to take the testimony of Drs. Agostinelli and Black and to afford an opportunity for cross-examination of the respective doctors concerning their divergent opinions as to the defendant's ability to stand trial.
At the evidentiary hearing held on May 22, 1980, Dr. Agostinelli, a Board Certified Internist, testified that defendant first visited him in December of 1972 for a routine physical-nothing unusual was found. He next consulted Dr. Agostinelli in May of 1979 when the Doctor found a large abdominal aneurysm and that the defendant suffered from peripheral vascular disease. The aneurysm was surgically removed at Rochester General Hospital in June of 1979. The defendant has had a good and sufficient recovery therefrom with no residuals. In December of 1979, defendant was indicted and on January 24, 1980, a superseding indictment was filed against him. Thereafter on February 1, 1980, on Dr. Agostinelli's referral, defendant Mosley was given a treadmill test at the Rochester Cardio Pulmonary Group. Dr. Prakash N. Pande, a Board Certified Cardiologist, who performed the test noted that defendant Mosley was symptomatic with angina pectoris and had a history of "heart attack and heart failure" in the past. Dr. Pande found a "definitely positive submaximal stress test and ... widespread distribution of the ST segment abnormalities" which made him "suspect severe 2 or 3 vessel coronary artery disease." Dr. Agostinelli continued to follow the medical progress of Mr. Mosley up to the time of the evidentiary hearing. He testified as to his diagnosis of coronary artery disease with a coronary insufficiency. The condition is permanent. In his opinion a trial may precipitate a coronary event which would be life threatening. The coronary event is a myocardial infarction.
Dr. Black testified at the evidentiary hearing substantially as set forth in his written report to the Court. He opined that Mosley's problems were due mainly to his lung disease. In addition he stated that the ischemic heart disease which defendant Mosley suffered from would not prevent him from testifying at trial. He suggested that his condition could be monitored through the Court regulating trial time and the defendant's appearances and also with medical attendance at trial.
At the conclusion of Dr. Black's testimony, defendant Mosley was put on the stand by his counsel. His attorney, Mr. Grossman, began questioning him about his physical experiences during the prior testimony of Drs. Agostinelli and Black, and shortly after he started questioning him in that regard, Mosley experienced a shortness of breath, evidenced distress and a recess was taken. Dr. Agostinelli examined defendant Mosley during the recess. Dr. Agostinelli was recalled and stated that his examination during the recess revealed that Mosley had a "thready" pulse and that he, Agostinelli, could barely feel it. He stated that Mosley was in shock and expressed pain and pressure behind his arms and shortness of breath. His pulse was between 48 and 50. He responded to nitroglycerin. It was apparent to Dr. Agostinelli and to the Court that Mosley during his testimony was experiencing some sort of difficulty which did not appear to be feigned.
When Dr. Black, who was not present during Mosley's testimony at the evidentiary hearing, was informed by the Court of the physical episode he had had, Dr. Black suggested further medical examination and the performing of certain noninvasive tests which would aid in confirming whether or not defendant had ischemic heart disease of such severity so as to prevent him from testifying. The Court informed both the Government and defense counsel of same and no objection was made to a further examination by medical experts for the Court's benefit. The Court then designated Dr. Louis A. Wasserman, Associated Internists of Syracuse, P.C., a Board Certified Internist, Board Certified Cardiologist and Fellow of the American College of Cardiology, to conduct the further examination and testing. Dr. Wasserman, on June 30, 1980, performed a complete medical evaluation of William Mosley, Sr. The Doctor reported in his letter to the Court of July 18, 1980, on the basis of the history, physical examination, chest x-ray, office spirometry, resting ECG and routine blood studies that Mosley had the following medical problems:
A. Ischemic heart disease with chronic stable angina.
B. Peripheral vascular disease-primarily involving right lower extremity.
C. Moderate obstructive airway ...