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January 19, 1977

Bernarr ZOVLUCK, Defendant

The opinion of the court was delivered by: BRIEANT


 BRIEANT, District Judge.

 On February 19, 1975 defendant Bernarr Zovluck was indicted for fourteen counts of mail fraud, and attempted mail fraud involving the use of false names on applications to the offices of credit card agencies, banks and other commercial establishments, as well as one count of making a false statement in an application for a personal installment loan to a branch of Bankers Trust Company.

 Following the indictment, Zovluck and his court-appointed attorney moved to suppress several confessions and admissions made by defendant as well as certain evidence which had been seized from his office. At the suppression hearing and related pretrial proceedings, Zovluck insisted on appearing pro se.1 After several such appearances before me in connection with the suppression hearing, I became concerned that defendant might not be competent to stand trial. I therefore directed that Zovluck be sent to the Federal Medical Center at Springfield, Missouri for a determination as to his mental competency to understand the proceedings against him. An evidentiary hearing has been held before me pursuant to 18 U.S.C. § 4244. *fn2"

 Zovluck first went to Springfield on February 12, 1976. After a stay of one month, he was found by the staff to be incompetent to stand trial and was remanded to this Court on March 24, 1976 for further proceedings. The report of incompetency included evaluation by two staff psychiatrists at Springfield, both of whom reached no decision, deferring rather to a determination by staff review. The staff examination, conducted before ten professionals, produced a finding of incompetency.

 On April 14, 1976, at the first hearing following receipt of the Springfield report, the Government moved to have Zovluck returned to Springfield for further study and evaluation. The Government based this request on the psychiatrists' statements that additional information, received after the examination, might have rendered their conclusion inaccurate. Dr. Jack Eardley, Chief of Psychiatry at Springfield, testified before me to this effect. He stated that:

"in view of the information that was presented here this winter [transcript of the suppression hearings] I have reservations about our initial impression . . . . So there are inconsistencies." (Transcript, April 14, 1976, p. 34).

 The doctor testified that a broader study, involving more doctors and psychologists, and based on a full range of tests and evaluations would produce a more accurate result. On April 14, 1976 I ordered defendant returned to Springfield for further study and evaluation. He arrived there on May 7, 1976.

 On September 15, 1976 the Court received a letter from Dr. Eardley declaring the defendant competent to stand trial. Attached to this letter were reports from Drs. Collier, Fain, Varhely and Eardley, as well as Mr. Kinney, a psychologist, all members of the Springfield staff, and from Dr. Emasue Snow, a consulting psychiatrist. These reports, collectively, support the conclusion that defendant is competent to stand trial, and was in fact, malingering in an effort to avoid going to trial.

 At the competency hearing, which reconvened on October 7, 1976, the Government offered testimony from Drs. Snow, Varhely and Eardley, each of whom found Zovluck to be malingering and competent to stand trial. After two days of hearings, a continuance was granted to allow the defendant to present testimony from a psychiatrist of his choosing. On December 6 and again on December 16, 1976 this Court heard testimony from Dr. Augustus Kinzel, a distinguished psychiatrist engaged in private practice in New York City and a Lecturer on Legal Psychiatry at Columbia University. Dr. Kinzel testified, pursuant to two reports submitted to this Court, that Zovluck is incompetent to stand trial and is not malingering. The hearing was completed on December 16, 1976.

 The legal test of a defendant's competency to stand trial is found in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960):

"(Whether) he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings." (Emphasis added).

 See also Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). It is noteworthy that incompetency to stand trial is not defined in terms of mental illness. A defendant can be competent to stand trial despite being mentally ill. Similarly, a defendant can be found incompetent to stand trial without being mentally ill. United States v. Adams, 297 F. Supp. 596 (S.D.N.Y. 1969). Competence to stand trial is not solely a medical concept. The inquiry is not whether defendant is sick, but whether he can understand the charges against him and cooperate with his attorney in making his defense. It is for this reason that the psychiatric evaluations serve only as recommendations in making the final judgment.

 In United States v. Mercado, 469 F.2d 1148 (2d Cir. 1972), this Circuit applied the test of Dusky, supra, in affirming a finding of competence based on a showing that defendant understood the charges against him and was capable of cooperating in his defense by such means as providing an account of the facts and providing the names of necessary witnesses. This finding, of course, is not synonymous with a clean bill of mental health.

 The burden of proving that defendant is competent to stand trial is on the Government, which must prove its contention by a preponderance of the evidence. United States ex rel. Bornholdt v. Ternullo, 402 F. Supp. 374, 377 (S.D.N.Y.1975), and cases therein cited. This allocation of the burden is reasonable in view of the established rule that trial of an accused while incompetent is a violation of the accused's constitutional rights. United States ex rel. Daniels v. Johnston, 328 F. Supp. 100, 110 (S.D.N.Y.1971); United States v. Knohl, 379 F.2d 427, 434 (2d Cir.), cert. denied, 389 U.S. 973, 88 S. Ct. 472, 19 L. Ed. 2d 465 (1967). Thus, if the evidence presented by both the defendant and the Government results in an irreconcilable contradiction, the defendant must be given the benefit of the doubt and found to be incompetent.

 We turn now to a review of the evidence presented in the reports submitted to this Court and in the hearings held before me. In making the difficult determination as to Zovluck's competence to stand trial the Court will also give consideration to its own impressions and observations of defendant stated below, derived from his many court appearances and his voluminous pro se motions.

 Dr. Snow, the consulting psychiatrist, submitted a report finding Zovluck competent to stand trial. In her interviews with Zovluck she found him to be "fully oriented, alert and attentive." She found no recent or remote memory defects, his "affect was appropriate" and his mood was "calm, confident and controlled." Although Dr. Snow reported that Zovluck would not cooperate with any formal mental status testing, she found Zovluck to be quite capable of ...

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