The opinion of the court was delivered by: PIERCE
MEMORANDUM OPINION AND ORDER
On May 22, 1972, defendant Philip DeLuca and four co-defendants were indicted pursuant to 21 U.S.C. §§ 846, 963, 812, 841(a)(1) and 841(b)(1)(A) for conspiracy to violate the Federal Narcotics laws, as well as for substantive violations thereof. On October 16, 1972, after a lengthy hearing, this Court found defendant DeLuca mentally competent to stand trial. Defendant pleaded not guilty and asserted an insanity defense at trial. However, on November 18, 1972, after a 51/2 week trial, the jury rejected this defense and found defendant and his four co-defendants guilty on two counts: conspiracy to import 120 kilograms of heroin and possession thereof with intent to distribute. This conviction was subsequently affirmed on appeal. See U.S. v. Barrera, 486 F.2d 333 (2d Cir. 1973), cert. denied, 416 U.S. 940, 94 S. Ct. 1944, 40 L. Ed. 2d 291 (1974).
On January 10, 1973, this Court provisionally sentenced defendant, pursuant to 18 U.S.C. § 4208(b), to maximum sentences of 15 years imprisonment and a $ 25,000 fine on each of the two counts plus three years special parole. Defendant was then committed to Lewisburg Penitentiary for psychiatric evaluation. On or about May 4, 1973, the results of the study were sent to the Court, and after a post-trial competency hearing, held on June 27, 1973, this Court found defendant mentally incompetent to be sentenced. On June 28, 1973 the Court entered an order pursuant to 18 U.S.C. § 4246 committing the defendant to the custody of the Attorney General of the United States for treatment until such time when the defendant might be found mentally competent to appear before the Court for final sentencing.
Pursuant to this order the defendant was committed to the Medical Center for Federal Prisons at Springfield, Missouri on July 19, 1973. After evaluating the defendant, the Springfield medical staff reported its conclusion that defendant was a severe chronic schizophrenic who was, and likely would continue to be incompetent to be sentenced.
Following his filing a petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255 in the Western District of Missouri, defendant was returned to the Metropolitan Correctional Center in New York City in November 1975. While there, defendant was examined, at the request of the prosecution, by a Dr. Portnow, who was also of the opinion that defendant continued to be incompetent to be sentenced.
Subsequently, on February 6, 1976, defendant was released on bail, without Government opposition and with the consent of his counsel, on condition that defendant present himself to New York State authorities for voluntary commitment to a state institution as a mental patient, and that defendant's attorney file periodic written reports on defendant's mental status with the Court. Later that month, defendant became an in-patient at the Rockland County Psychiatric Center. Defendant remained at that Center until February 24, 1977, when he was discharged to the custody of his brother, with treatment to be provided on a part-time out-patient basis at the Nyack Health Center. The Court consented to this arrangement at a conference held on March 11, 1977. Since that conference, defendant's attorney has continued to file with the Court the required reports on defendant's mental status. The most recent report, which was written by Dr. Alan J. Tuckman, and dated August 5, 1981, states that DeLuca is unlikely to become competent to be sentenced at any time in the future.
On November 7, 1979, defendant's counsel filed a motion pursuant to 28 U.S.C. § 2255, seeking the entry of an order vacating the conviction previously entered against defendant and dismissing the indictment. Defendant's counsel asserts that the then-61/2 year delay in finally sentencing defendant constitutes a violation of defendant's Sixth Amendment right to a speedy trial, and that the Court's continued jurisdiction over defendant for purposes of sentencing him constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. For the reasons stated hereinbelow defendant's motion pursuant to 28 U.S.C. § 2255 is denied. As discussed below, defendant DeLuca shall remain subject to the jurisdiction of the Court for imposition of final sentence for a definite period of time.
I. Defendant's Eighth Amendment Claims
Section 4246 of Title 18 provides that "whenever the trial court shall determine (after arrest and prior to imposition of sentence) ... that an accused is or was mentally incompetent, the court may commit the accused to the custody of the Attorney General or his authorized representative, until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law."
In Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), the Supreme Court stated that although § 4246 authorizes a commitment of potentially indefinite duration, the cases had imposed a rule of reasonableness on 18 U.S.C. §§ 4244 and 4246. Consequently, in the absence of a finding of dangerousness, a defendant committed thereunder can be held only for a "reasonable period of time" necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future. 406 U.S. at 733, 92 S. Ct. at 1855. The situation at issue in Jackson, however, was entirely different from the one at bar. Defendant DeLuca has been convicted of an extremely serious offense, and that conviction was affirmed on appeal by the Second Circuit. U.S. v. Barrera, 486 F.2d 333 (2d Cir. 1973), cert. denied, 416 U.S. 940, 94 S. Ct. 1944, 40 L. Ed. 2d 291 (1974). Therefore, this Court is not faced with a situation involving "denial of due process inherent in "holding pending criminal charges indefinitely over the head of one who will never have a chance to prove his innocence.' " 406 U.S. at 738, 92 S. Ct. at 1858. In addition, defendant DeLuca has not been confined since February 24, 1977, and presumably will not be confined during any period of continued incompetence. Thus, defendant has presented no cognizable claim of cruel and unusual punishment in violation of the Eighth Amendment.
II. Defendant's Sixth Amendment Claims
Defendant correctly asserts that this Court's provisional sentence under 18 U.S.C. § 4208 was "wholly tentative," U.S. v. Behrens, 375 U.S. 162, 164-65, 84 S. Ct. 295, 296, 11 L. Ed. 2d 224 (1963), and that defendant has never been finally sentenced.
The Supreme Court indeed has held that "in the legal sense, a prosecution terminates only when sentence is imposed." Bradley v. U.S., 410 U.S. 605, 609, 93 S. Ct. 1151, 1154, 35 L. Ed. 2d 528 (1973). In addition, in Pollard v. U.S., 352 U.S. 354, 361, 77 S. Ct. 481, 485, 1 L. Ed. 2d 393 (1957), the Court assumed, without deciding, that sentencing is part of the trial for purposes of the Sixth Amendment. Numerous circuit courts have followed the Supreme Court's lead and made the same assumption, although some have read the Supreme Court's actual holding as being limited to cases in which delay was "purposeful or oppressive." See, e.g., U.S. v. Campisi, 583 F.2d 692, 694 (3d Cir. 1978); U.S. v. Campbell, 531 F.2d 1333, 1335 (5th Cir. 1976), cert. denied, 434 U.S. 851, 98 S. Ct. 164, 54 L. Ed. 2d 121 (1977); Juarez-Casares v. U.S., 496 F.2d 190, 192 (5th Cir. 1974); Brooks v. U.S., 423 F.2d 1149 (8th Cir.), cert. denied, 400 U.S. 872, 91 S. Ct. 109, 27 L. Ed. 2d 111 (1970); U.S. v. Tortorello, 391 F.2d 587 (2d Cir. 1968); U.S. v. Grabina, 309 F.2d 783 (2d Cir. 1962), cert. denied, 374 U.S. 836, 83 S. Ct. 1885, 10 L. Ed. 2d 1057 (1963); White v. Henderson, 467 F. Supp. 96 (S.D.N.Y.1979). In addition, this Court is bound to observe the directive of Rule 32 (a)(1), Fed.R.Cr.P., that "sentence shall be imposed without unreasonable delay."
Thus, while the choice of time for sentencing is generally within the discretion of the trial judge, that discretion is not unlimited and sentence must be imposed without unreasonable delay. Therefore, assuming that Sixth Amendment speedy trial considerations do apply to the delay in imposing final sentence on defendant DeLuca, the Court must determine whether the delay in sentencing has been unreasonable in light of the peculiar circumstances of this particular case. In making this determination the Court must consider the four factors identified by the Supreme Court, and apply the balancing test enunciated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Thus, the Court will examine the length of the delay, the reason for the delay, the ...