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 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
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