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April 18, 1991


The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:


On October 10, 1989, a two-count indictment was filed against defendants Cornelio Espinal and Jose Antonio Dominguez, charging them with: (1) conspiracy to possess with intent to distribute over 500 grams of a substance containing detectible amounts of cocaine, in violation of 21 U.S.C. § 846 (1989); and (2) possession with intent to distribute the same within one thousand feet of a school, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), 845a(a), and 18 U.S.C. § 2 (1989). Counsel was appointed pursuant to the Criminal Justice Act on behalf of Espinal; Dominguez retained private counsel.*fn1 On March 16, 1990, counsel for Dominguez brought on an omnibus motion pursuant to 18 U.S.C. § 4241(a) and Fed.R.Crim.P. 12(b)(3) and 14, for a hearing to determine Dominguez' competence to stand trial, for suppression of physical evidence seized, and for a severance.*fn2 On November 8, 1990, I ordered psychiatric and neurological exams for Dominguez to be conducted at Bellevue Hospital. A competency hearing was conducted before me on January 15th and 25th, 1991. Dominguez was remanded to the Manhattan Correctional Center ("MCC") pending resolution of the issues here. On February 13, 1991, the government provided me with several tape recordings and transcripts (translated into English) of various conversations that Dominguez conducted from the MCC with his wife and children. The following constitutes my findings of fact and conclusions of law relevant to the issue of competency.


On July 25, 1983, while Dominguez was employed as a mechanic in an automobile body shop, he suffered an accident on the job. It is unclear from the record, but either a nail or a piece of metal dislodged from a nail gun striking him in the left eyebrow. Dominguez was seen at Riverside General Hospital where x-rays were negative for fracture, however, a piece of foreign material remained in the left eyebrow. A few days later, Dominguez returned to the hospital and the metal was removed. He received a tetanus injection, and 3 stitches. Dominguez has not been gainfully employed since the accident.*fn3

On September 26, 1989, Dominguez was arrested by the Drug Enforcement Administration ("DEA") for drug possession. After the arrest, Dominguez was searched. Seized from his person were certain personal papers, a wallet, a beeper, a watch, numerous keys, bridge tokens, a cocaine spoon, and $131.00 in cash. At the hearing, Dominguez' wife Ilonka testified that Dominguez was not responsible for his actions on the day that he was arrested, maintaining in substance that he was just in the wrong place at the wrong time. At the hearing conducted before me, she consistently professed Dominguez' mental instability and incompetence.

Specifically, Ilonka describes Dominguez as generally non-responsive and unable to care for himself. She claims that he is unable to dress himself or take care of simple hygiene, although he is lucid enough to toilet himself and he was never reported incontinent by either Ilonka or anyone at the MCC.

"He's always in bed or sitting down . . . . he does not help clean house, where before [the 1983 accident] we would divide up the [house] chores." She also claims that she had to re-teach Dominguez how to accomplish the simplest of tasks, for example, how to utilize eating utensils. Additionally, Ilonka claims that she and Dominguez have suffered an abnormal and impaired sexual relationship since the accident. Ilonka bore a child since then, but claims that Dominguez ignores the child and barely recognizes or speaks to her.

Three experts testified at the hearing. Two of the experts, Dr. Lawrence A. Siegel and Dr. Naomi Goldstein attest to the fact that the evidence overwhelmingly shows that Dominguez is a malingerer. Dr. Milford Blackwell, however, claims that Dominguez is mute, non-responsive, and suffers from catatonia. A fourth expert, Dr. Stephen Feldman a Bellevue neurologist, reported to me by phone his opinion that Dominguez was likely malingering because he displayed no physiological or neurological deficits.


If, after a hearing on the issue of a defendant's competency, the district court:

  finds by a preponderance of the evidence that the
  defendant is presently suffering from a mental
  disease or defect rendering him mentally
  incompetent to the extent that he is unable to
  understand the nature and consequences of the
  proceedings against him or to assist properly in
  his defense, the court shall commit the defendant
  to the custody of the Attorney General . . . for
  such a reasonable period of time, not to exceed
  four months, as is necessary to determine whether
  there is a substantial probability that in the
  foreseeable future he will attain the capacity to
  permit the trial to proceed.

18 U.S.C. § 4241(d) (1985).

Under a predecessor statute, 18 U.S.C. § 4244, the test for competency was whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. He must rationally and factually understand the proceedings against him. United States v. Hemsi, 901 F.2d 293, 295 (2d Cir. 1990) (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). Now, the inquiry additionally involves assessing whether the defendant can assist counsel in specific ways such as "providing accounts of the facts, names of witnesses, etc." United States v. Hemsi, 901 F.2d at 295 (quoting United States v. Mercado, 469 F.2d 1148, 1152 (2nd Cir. 1972)). Evidence relevant to determining competency includes medical and psychological opinion, aberrant behavior and demeanor at the hearing.

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