United States v. King, 75 Cr. 70 (MEF).
Decision Date | 10 January 1978 |
Docket Number | No. 75 Cr. 70 (MEF).,75 Cr. 70 (MEF). |
Citation | 442 F. Supp. 1244 |
Parties | UNITED STATES of America, Plaintiff, v. John M. KING and A. Rowland Boucher, Defendants. |
Court | U.S. District Court — Southern District of New York |
Robert B. Fiske, Jr., U. S. Atty., for the Southern District of New York, New York City; Paul Vizcarrondo, Jr., John R. Wing, Asst. U. S. Attys., New York City, of counsel.
Barrett, Smith, Schapiro, Simon & Armstrong, New York City, for defendant, John M. King; Michael F. Armstrong, New York City, of counsel.
Maloney, Viviani & Higgins, New York City, for defendant, A. Rowland Boucher; Andrew J. Maloney, New York City, of counsel.
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 severe 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 (2 Cir.). Certiorari was denied on October 31, 1977. ___ U.S. ___, 98 S.Ct. 404, 54 L.Ed.2d 283.
In the meantime, on November 12, 1976, defendant King suffered a stroke with temporary right-side paralysis, loss of the ability to communicate, and other damage. He has 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 sequellae and need for treatment, the current therapeutic regimen, and his prognosis. As to the original condition and progress under treatment, he wrote:
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:
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 his letter to counsel this way:
A second physician, Dr. A. George Fleischer, specializing in physical medicine and rehabilitation, notes that Mr. King has, since his November 1976 stroke, had "a series of documented transient ischemic attacks" or, as Dr. Edgar called them, "recurring smaller strokes," a further problem requiring care and attention. He confirms the need for continued speech therapy if Mr. King is to achieve maximum cure. He says: "If Mr. King is incarcerated, it is mandatory that care must be taken to keep him oriented to time and care must be taken to keep him very busy in order to control his mood swings."
Another rehabilitation specialist, who is also a cardiovascular researcher, Menard M. Gertler, finds significant that this "exceedingly well nourished, well developed" patient...
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