A. RICHARD CAPUTO, District Judge.
Raphael Musto is charged in a Second Superseding Indictment with (1) Honest Services Wire Fraud; (2) Honest Services Mail Fraud and Mail Fraud; (3) Corrupt Receipt of Bribe/Reward for Official Action Concerning Programs Receiving Federal Funds; and, (4) False Statements to Government Agent. He has moved to continue the trial indefinitely because he maintains he is not competent to go to trial. A trial has been scheduled for January 13, 2014, and a competency hearing was scheduled and held on January 6, 2014. Mr. Musto contends he is both physically and mentally not competent to go to trial.
The Court appointed two experts to aid the Court in the consideration of this motion. K. Rajender Reddy, M.D., Professor of Medicine, Director of Hepatology and Medical Director of Liver Transplantation at the Hospital of the University of Pennsylvania, a liver expert, was asked to determine whether Mr. Musto's liver disease rendered him incompetent to go to trial. Susan E. Rushing, M.D., J.D., a forensic psychiatrist and assistant professor at the University of Pennsylvania Perelman School of Medicine, was asked to determine whether Mr. Musto suffered from a mental disease or defect which rendered him incompetent to go to trial She was asked to follow 28 U.S.C. § 4241, et seq. Both Dr. Reddy and Dr. Rushing testified at the competency hearing.
Mr. Musto has submitted four expert reports from Cataldo Doria, M.D., a liver disease expert from Jefferson Medical College, and two reports from Richard Fischbein, M.D., a psychiatrist. Both Dr. Doria and Dr. Fischbein testified at the competency hearing.
The Government submitted a report of Ian R. Schreibman, M.D., a liver disease expert from Penn State Milton S. Hershey Medical Center. Dr. Schreibman was not called by the Government to testify at the competency hearing.
The determination of incompetency to stand trial for physical reasons is left to the discretion of the Court. See, U.S. V. Schaffer, 433 F.2d 928, 930 (5th Cir. 1970); U.S. v. Gunter, No. 12-394-4, 2013 WL 5942341 (E.D. Pa. Nov. 5, 2013). The determination of incompetency to stand trial for mental reasons is governed by statute; 28 U.S.C. §4241, et seq.
A. Physical Reasons
In exercising discretion on the issue of physical competence to stand trial, the Court should consider (1) the medical evidence; (2) the defendant's activities at work or play or wherever - outside the courthouse; (3) the possible availability of measures to minimize the risk to the defendant's health in subjecting him to trial; (4) the temporary or permanent character of the physical problem; and, (5) the magnitude and seriousness, that is, the public's interest in prosecuting the case. U.S. v. Gunter, id., at 1, citing U.S. v. Doran, 328 F.Supp. 1261 (S.D.N.Y. 1971).
I will consider each of these factors in turn.
(1) Medical Evidence
Mr. Musto suffers from non-alcoholic cirrhosis of the liver, a thoracic aneurysm, fatigue, skin itch and insomnia. He also has other maladies, but the foregoing are those offered as rendering him incompetent to be tried.
(a) Liver Disease. The complications from liver disease are varices (esophageal bleeding), ascites (fluid in the abdomen), encephalopathy, and liver cancer.
(I) Varices - Other than a reference to Dr. Jeffrey's 2011 engagement with Mr. Musto, there is no evidence of varices in Mr. Musto. Moreover, there is no evidence as to the extent of the condition in 2011, the treatment, if any, for same, and a prognosis.
(ii) Ascites - Mr. Musto had an episode of ascites in 2011 which was successfully treated with diuretics. There is no evidence of a recurrence of ascites. Indeed, Dr. Doria testified he does not know if Mr. Musto has ascites. There is agreement between Dr. Doria and Dr. Reddy that Mr. Musto has edema (swelling - fluid retention) in his lower extremities which is a consequence ...