The opinion of the court was delivered by: HOWARD G. MUNSON
In an indictment dated April 20, 1994, defendant David A. Jones is charged with three counts of wire fraud in violation of 18 U.S.C. §§ 1342 and 1343, and ten counts of money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and (b)(2) (Case Number 94-CR-143). In a separate indictment dated September 30, 1994, defendant is charged with two counts of perjury in violation of 18 U.S.C. § 1623 (Case Number 94-CR-341). Presently before the court is defendant's motion for a continuance on the basis that he is physically incompetent to stand trial at this time
The issue of defendant's competence was first raised in defendant's motion for an order appointing an impartial physician to determine whether he is physically competent to stand trial. Defendant's Notice of Motion, Document ("Doc.") 45 in Case Number 94-CR-143, Doc. 13 in Case Number 94-CR-341. In his motion, defendant submitted the affidavit of Karl F. Gauss, M.D., who is treating defendant for a "variety of medical problems" including heart disease and diabetes mellitus. Dr. Gauss opined that defendant is "at a substantial risk of developing a heart attack were he to immediately undergo the physical and emotional exertion associated with a trial projected to last two weeks." Affidavit ("Aff.") of Karl F. Gauss, M.D., attached to Defendant's Notice of Motion, Doc. 45 in Case Number 94-CR-143, Doc. 13 in Case Number 341. Based upon the initial showing that defendant may not be physically competent to stand trial, the government consented to the application for a court-appointed physician. Thus, by Order dated January 27, 1995, the court appointed Stephen D. Nash, M.D., to conduct a physical examination of defendant to determine whether he is able to stand trial without posing a substantial danger to his life or health. Order, Doc. 47 in Case Number 94-CR-143, Doc. 14 in Case Number 94-CR-341. After conducting an examination of defendant, Dr. Nash stated in a written report to the court that he does "not believe that [defendant] has a substantially increased risk of myocardial infarction from sitting in a courtroom" and that "the risk of myocardial infarction, while certainly real, is not substantially increased by [defendant] standing trial." Letter Dated January 31, 1995, Doc. 59 in Case Number 94-CR-143, Doc. 19 in Case Number 94-CR-341.
To resolve the apparent conflict between these medical opinions, the court conducted a hearing on February 13, 1995, at Syracuse, New York, at which it heard testimony from defendant, Dr. Nash, Dr. Gauss, and John N. Burgess, M.D., a friend of defendant. After careful consideration of the testimony presented at the hearing, the medical reports submitted by doctors Nash and Gauss, and the court's own observations of defendant during the hearing, the court finds that defendant is physically competent to stand trial at the present time.
The court begins its analysis by noting that while there exists a statutory basis to make a determination with regard to mental competency to stand trial, 18 U.S.C. § 4241, the court is unable to locate, despite much effort, any statutory basis to make a determination with regard to physical competency to stand trial. However, the Second Circuit has long held that the granting or denying of a motion for continuance or severance on the ground that the accused is physically incompetent to stand trial falls within the sound discretion of the trial court. United States v. Gambino, 809 F. Supp. 1061, 1077 (S.D.N.Y. 1992) (physical incompetency unwarranted); Bernstein v. Travia, 495 F.2d 1180, 1182 (2d Cir. 1974) (physical incompetency unwarranted); United States v. Knohl, 379 F.2d 427, 437 (2d Cir. 1967), cert. denied, 379 U.S. 973 (1967) (mental and physical incompetency unwarranted); United States v. Bernstein, 417 F.2d 641, 643 (2d Cir. 1969) (physical incompetency unwarranted). In United States v. Doran, the court set forth five factors to consider in determining whether a defendant's physical condition makes him unable to stand trial:
2. defendant's activities outside the courthouse;
3. measures to minimize the risks to defendant's health;
4. usefulness of delay; and
5. seriousness of the case.
328 F. Supp. 1261, 1263 (S.D.N.Y. 1971)