With a second sentencing date looming, the attorney for Rene Boucher has petitioned the judge overseeing Boucher’s case to not send Boucher back to prison.
Special Judge Matthew Leitman will preside over Monday’s sentencing hearing for Boucher, who will learn what his punishment will be for assaulting his then-neighbor, U.S. Sen. Rand Paul, as the Republican legislator was doing yardwork outside his home on Nov. 3, 2017.
Boucher had previously been ordered to serve 30 days in prison, pay a $10,000 fine and perform 100 hours of community service.
The U.S. Court of Appeals for the 6th Circuit, however, vacated the penalties last year, ruling that the 30-day sentence was “substantively unreasonable” in light of the extent of Paul’s injuries from being tackled by Boucher, including multiple rib fractures and bouts of pneumonia.
Special Prosecutor Bradley Shepard, who won the appeal, has requested that Boucher be sentenced to 21 months in prison.
Boucher’s attorney, Matt Baker, filed a memorandum Friday in U.S. District Court in which he argues that the 30 days’ incarceration Boucher served while the case was under appeal, plus a $582,834.82 judgment against Boucher in a civil case, serve as sufficient punishment.
“Boucher respectfully submits that, given the fact that he has completely served a perfectly legal sentence ... and been ordered to pay Senator Paul well in excess of $600,000 in damages – he has been punished not once, but twice already,” Baker said in the filing. “Now, the government seeks to punish him a third time. At some point, enough is enough.”
A $630,000 cash bond posted with the Warren Circuit Clerk following the sale of Boucher’s home in Rivergreen subdivision, with the proceeds to go to Paul if Boucher’s appeals of the civil judgment are unsuccessful, account for Baker’s description of damages totaling “well in excess of $600,000.”
Baker also disputed the government’s claims that an operation last year to remove a portion of Paul’s lung could be attributed to the assault.
Medical records submitted with the filing show that Paul was diagnosed with acid reflux ahead of the surgery, and a biopsy of the portion of lung that was removed showed the presence of “vegetable matter,” with Baker arguing there is “absolutely no factual basis” to suggest that the presence of the matter in Paul’s lung was brought about by being tackled two years earlier.
“To be right to the point, Paul’s lung surgery was caused by his reflux disease – not the incident of Nov. 3, 2017,” Baker said in his filing.
Federal sentencing guidelines, which take into account a defendant’s prior criminal history and the nature of the offense for which the defendant is to be punished, calculated a penalty range of 21-27 months in prison for Boucher.
Assaulting a member of Congress has a maximum penalty of 10 years in prison.
Baker argues that varying downward from that penalty range is appropriate in this case due to Boucher’s lack of prior criminal history and his contention that Boucher is unlikely to commit another offense, the assault on the senator being characterized as “aberrant” behavior due to a property dispute.
Evidence has emerged over the course of the criminal and civil cases that, in the months prior to the assault, Boucher removed multiple piles of yard debris that Paul placed in his yard near their shared property line.
Boucher argued that he believed the debris piles had been placed there after he had trimmed maple trees in Paul’s yard that had grown over the property line onto Boucher’s side.
Paul testified at the 2019 civil trial that he had little interaction with Boucher during the time they were neighbors and there had been no discussion between them about the debris prior to being tackled.
In Shepard’s filing last week supporting a 21-month sentence, the prosecutor compared Boucher’s case to other assault cases in the federal court system involving federal officials or occurring on federal property, noting that the defendants tended to receive slightly more time in prison than what was being requested for Boucher, though there were no known federal cases involving an elected official injured by an assault.
Baker in his response argued the cases used by the prosecutor to support his argument were a “red herring” and largely involved federal prison guards being assaulted by defendants who were serving sentences for other crimes.
Baker said that comparing this case to others involving elected officials was not appropriate because the assault on Paul was not politically motivated.