United States v. DeNunzio

174 F.Supp.3d 582

United States of America,

v.Dustin J. DeNunzio, Anthony Gattineri and Charles A. Lightbody, Defendants.

Criminal Action No. 14-10284-NMG

United States District Court, D. Massachusetts.

Signed March 29, 2016

Kristina E. Barclay, U.S. Attorney's Office, Boston, MA, for United States of America.

MEMORANDUM & ORDER

Gorton, United States District Judge

Defendants Dustin DeNunzio (“DeNunzio”), Anthony Gattineri (“Gattineri”) and Charles Lightbody (“Lightbody”) are charged with wire fraud, in violation of 18 U.S.C. § 1343, and conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371. This case is currently scheduled for trial on Monday, April 11, 2016. On Friday, March 25, 2016, defendant Lightbody filed a motion to continue or sever the trial on the grounds that he is currently physically and mentally incompetent to stand trial due to the fact that he is currently recovering from a course of chemotherapy intended to treat his lymphoma. That treatment was completed in December, 2015.

Lightbody continues to be treated with an investigational new drug and, according to his oncologist, will remain on preventive antibiotics until June, 2016 due to an increased risk of infection created by his treatment. His physician recommends that Lightbody “minimize the risk of infection by limiting public exposure” and states that he does not believe Lightbody is physically ready to stand trial. Lightbody also reports profound cumulative fatigue, forgetfulness, memory loss and mental fogginess resulting from his chemotherapy, a condition known as “chemo-brain.” Lightbody's physician reports that this condition is not well-understood but is not unusual in patients treated with chemotherapy and can progress for up to two years following treatment.

I. Analysis

A. Alleged Physical Incompetence to Stand Trial

A criminal defendant is considered physically incompetent to stand trial if the trial will “pose a substantial danger to a defendant's life or health.” United States v. Zannino, 895 F.2d 1, 14 (1st Cir.1990). By contrast, “[t]he mere possibility of an adverse effect on a party's wellbeing is not enough to warrant a postponement.” Id. In determining physical competency to stand trial, district courts must

consider not only the medical evidence but also the defendant's activities (in the courtroom and outside of it), the steps defendant is taking (or neglecting to take) to improve his health, and the measures which can feasibly be implemented to reduce medical risks.

Id.

Defendant's sole complaint with respect to his physical health is that he has an increased risk of infection, which could be exacerbated by the public exposure that would be attendant to his presence at trial. The government has presented uncontested evidence, however, that since the completion of his course of chemotherapy Lightbody has twice traveled to Florida and has been seen gambling at the Seminole Hard Rock Hotel and Casino, a casino with over 90 game tables spanning a nearly three-acre floor. On one of the two occasions, a Massachusetts State Trooper reported observing Lightbody seated at a black jack table with approximately $30,000 worth of chips in front of him.

Defendant's activities and his behavior with regard to the maintenance of his health indicate that Lightbody is well enough in control of his medical condition to withstand the rigors of a jury trial. He has felt comfortable enough to expose himself repeatedly to a large, public environment of the kind about which his doctor has cautioned. Given his apparent toleration of such exposure, the Court finds to the risk of infection to be a “mere possibility” not “substantial” enough to pose a danger to his life or health.

Further, although Lightbody's physician stated that he does not believe Lightbody is physically prepared to stand trial, that opinion was not based on any first-hand knowledge of what a...