increase the risk of a myocardial infarction, that risk, while difficult to quantify, is not substantially increased. In addition, Dr. Nash testified that the length of the trial is not significant in determining the increase in stress caused by the trial. Further, Dr. Nash testified that it is unlikely defendant's condition will improve if the trial is postponed and defendant were to undergo a new regimen of treatment.
The court is faced with the difficult task of weighing the testimony of two highly qualified physicians. The difficulty of the task is compounded by the very nature of the question that it is asked to decide: whether requiring defendant to undergo a trial will create a substantial risk to his life or health. In considering the evidence, however, the court gives greater weight to the testimony of Dr. Nash. In so doing, the court is mindful of the competent testimony provided by defendant's expert, an internist, who is very familiar with defendant's physical condition as his physician for nearly three years. On the other hand, Dr. Nash is a highly qualified cardiologist, and as a court appointed expert is in a better position to render an impartial opinion. Thus, the court finds that the medical evidence supports the conclusion that defendant is at a substantial risk of a heart attack, but this risk is not substantially increased by standing trial.
B. Defendant's Activities Outside the Courthouse
The court does not find this factor to be very helpful in its determination of defendant's physical competency to stand trial. Defendant argues that his health has dramatically deteriorated to the point where his ability to conduct simple tasks is severely compromised. For example, he is unable to sweep snow or walk up steps without experiencing difficulty in breathing. Defendant has stopped walking outdoors and spends a large portion of his day resting in a reclining chair and watching television. Of special significance, the defendant points to several incidents during which he lost consciousness, once while sitting in a barber's chair and on several occasions while sitting at home. Dr. Burgess, a friend of the defendant for about 15 years, witnessed defendant lose consciousness three times on Thanksgiving day in 1993. On the other hand, the Government notes that defendant is still able to drive an automobile, albeit with some difficulty, and that as recently as the Spring of 1994, defendant made an out-of-state trip to attend an auto race. In April 1994, the court held a hearing to determine whether to allow the defendant, who had been released on bail pending a trial in the instant matter, to leave the state to attend the race. The Government points to defendant's voluntary testimony at that hearing, as well as at the instant hearing, as evidence of his fitness to stand trial at the present time.
C. Measures to Minimize the Risks
The third factor for the court to consider is the potential to minimize the risks to defendant's health in subjecting him to a potentially lengthy trial. Dr. Nash testified that he was not aware of any medical measures that could be taken to reduce the risk to defendant's health. However, the court notes that some steps can be taken to ameliorate the amount of stress on defendant caused by a lengthy trial, such as reducing the length of the court day or week, and tailoring recesses in length and frequency. See United States v. Sweig, 316 F. Supp. 1148, 1167-68 (S.D.N.Y. 1970) (providing examples of steps to minimize the risk to a defendant's health during the trial).
D. Usefulness of Postponement
The court is unable to find that a postponement of the trial will minimize the risk to defendant's health. While it is possible that defendant's health may improve enough to allow him to stand trial without any substantial risk to his life or health, such improvement is unlikely. The more likely scenario is that defendant's health will continue to deteriorate. Dr. Gauss testified that a change in defendant's drug therapy could decrease angina episodes, but would unlikely effect the risk of arrhythmia or improve the overall function of defendant's heart. Dr. Nash testified that it is not highly likely that defendant's heart condition will improve. Thus, defendant's deteriorating condition actually weighs against postponing the trial. See Gambino, 809 F. Supp. at 1078; United States v. DePalma, 466 F. Supp. 920, 926 (S.D.N.Y. 1979) (to grant a medical severance motion "would be to effectively deny the Government a trial of these defendants, who may never be more capable of standing trial").
E. Seriousness of the Case
When a court examines "the degree of loss or injury to the public interest deemed to result from delay or total preclusion of a trial," Doran, 328 F. Supp. at 1263, the court is in essence "weighing the invariably unpredictable factor of a defendant's health against the Government's, indeed the public's, legitimate interest in a fair and speedy disposition." Bernstein v. Travia, 495 F.2d at 1182 (citations omitted). In Doran, the court noted that "some criminal cases are indeed more 'important' in patent respects than others. We ought to care more -- and we do in fact care more -- about resolving charges of large-scale crime or of grave crimes than we do about relatively minor individual cases (however troublesome in their total impact)." Doran, 328 F. Supp. at 1263. Thus, in Gambino, the court found that the public had a strong interest in avoiding any postponement of the trial because of the magnitude of the charges that alleged "various acts of racketeering including distribution of narcotics, murder, extortion, loansharking, and illegal gambling." Gambino, 809 F. Supp. at 1079. By way of comparison, it is not as clear in the instant case that the gravity of the charges weighs against any delay in the trial. While the public interest in justice is much clearer in a situation such as that posed in Gambino, the crimes with which defendant is charged in the instant matter do not suffer from such diminished importance as to preclude weighing in favor of speedy justice. The defendant is charged with numerous counts of wire fraud, money laundering and perjury. The court is unwilling to say that the level of seriousness of these crimes, and the public interest in justice, is of such little significance as to support defendant's argument to delay the trial. Rather, the seriousness of the crimes charged in the instant matter supports the view that the trial should not be delayed by the condition of defendant's physical health.
In conclusion, after careful consideration of the evidence, both testimonial and documentary, including first-hand observations of defendant's testimony, the court finds that defendant is physically competent to stand trial at the present time. Therefore, defendant's motion for a continuance is denied and the parties are directed to prepare for trial. However, the court notes that defendant may renew its motion for continuance if his physical condition substantially deteriorates. In addition, the court will entertain any suggestions the parties may have to ameliorate the risks to defendant's health at trial, consistent with the court's opinion.
It is so ORDERED.
Dated: February 21, 1995
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE