United States District Court, Southern District of New York
April 18, 1991
UNITED STATES OF AMERICA
CORNELIO ESPINAL AND JOSE ANTONIO DOMINGUEZ, DEFENDANTS.
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
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
At the hearing, Dominguez was quiet and cooperative. Upon
gaze, he would quickly dart his eyes away. An interpreter was
present and Dominguez willingly wore headphones in order to
hear the Spanish interpretation. There was never a question
about his hygiene and he has consistently looked neat and
clean in appearance. He had no problems with incontinence at
the hearing nor at the MCC.
At the hearing Dr. Siegel was asked whether Dominguez could
have suffered some sort of dementia secondary to the trauma.
Dr. Siegel answered that Dominguez lacks the aberrant behavior
and affectation to short and long-term memory indicative of
such dementia. He stated that because Dominguez' memory was
non-specific and his responses both preconceived and
consistent in their wrongness, he was likely feigning illness.
For example, Dr. Siegel, in his pre-hearing examination and
forensic report, states:
The patient [Dominguez] says he is twenty seven
years old [although he was thirty two at the
time]. He says he does not know his date of birth
or where he is. In response to questions he gives
the date as August 1985 on three separate
occasions. When a person has a loss of memory
usually recent memory is lost before remote
memory. One's birth date is the same as long as
one lives. Therefore [Dominguez'] claim not to
know his birth date is suspect. At the same time
he claims not to know his birth date, he gives
the same incorrect month and year each of three
times he is asked over a period of approximately
fifteen minutes. If he were truly disoriented one
would truly expect some variability in the date
that he gives. This would be because he truly did
not know the date and would have such a poor
memory that he wouldn't recall his prior guess.
Siegel Forensic-Psychiatric Opinion, December 28, 1990, at
At the hearing, Dr. Siegel stated that he posed inane
questions to see Dominguez' response. "I, for instance, asked
if he was afraid of his toothbrush because no one is afraid of
their toothbrush." In response, Dominguez stated that yes he
was afraid of it because it bites him in his mouth. Dr. Siegel
maintains that even with severely mentally ill patients, they
consistently answer in the negative in response to that
question, because if lucid enough to recognize what a
toothbrush is, there is usually no fear displayed in
connection with something so benign.
Dr. Feldman in his neurological/physiological exam stated
that Dominguez carefully calculated all of his responses,
tailoring them to be incorrect. For example, Dr. Feldman
reported having touched Dominguez' hand, asking him whether he
felt the stimulus. Dominguez responded in the negative. Then
the doctor asked Dominguez where it was that he did not feel
the touch and Dominguez pointed to the precise spot on the
hand that was touched to show where he purportedly did not
perceive the stimulus. Additionally, Dominguez did not present
with any brain pathology as evidenced by computerized axial
tomography ("CAT")*fn4 scan and electroencephalogram
("EEG").*fn5 The only abnormality shown was some swelling of
the meninges, membranes that envelop the brain and spinal
cord. However, none of the physicians found this to be either
remarkable or necessarily pathological.
According to Dr. Siegel, Dominguez had the full ability to
conceptualize a question, recognize the information that was
called for, and create a logical, yet incorrect response. For
example: "The patient is shown five of the examiner's fingers
and asked how many he sees. He says, `Three.' He is shown ten
of the examiner's fingers and asked the same question. He
says, `Eleven.'" Dr. Siegel maintains that these answers are
suspect and that "[o]bviously he [Dominguez] understands the
question requires a response of a number. If he is able to
understand the question, it is most likely he is able to
respond correctly." Additionally, in response to the question
what is "the color of the examiner's pants which are blue,"
Dominguez responds "Black." When asked "the color of his light
blue shirt, Dominguez says, `White.'" Dominguez "clearly
understands the questions but chooses to respond incorrectly."
Dominguez was examined by another forensic psychiatrist, Dr.
Naomi Goldstein, who testified that her findings were
consistent with those of Dr. Siegel. Specifically, that after
in-depth examination, she ruled out any possibility of other
proposed disorders, favoring a diagnosis of malingering.
Although Dominguez was not found to be of the highest
intelligence, it was her opinion that he was voluntarily
evading questions and that he has the present ability to
consult with his lawyer with a reasonable degree of rational
understanding. In addition, her testimony can be construed to
support a finding that Dominguez can rationally and factually
conceptualize the proceedings against him and if he so
chooses, aid in his defense.
On the other hand, Dr. Blackwell diagnosed Dominguez with an
organic deficit and catatonia. Dr. Blackwell admitted,
however, that he was not too impressed with the nail gun
injury to Dominguez' eyebrow. Instead, he thought more
impressive an injury that Dominguez later sustained to his
head when he bumped into a door. However, that injury was
immediately discounted by all of the other examiners and
diagnosticians. Dr. Blackwell maintains that Dominguez is
disabled and suffers from a mental defect which would not
enable him to assess the charges against him, plan with his
attorney, or aid in his own defense. Dr. Blackwell on a prior
occasion had also found Dominguez incompetent. This diagnosis
gave rise to the settlement of Dominguez' civil suit in which
he was also deemed incompetent.
Additionally, Ilonka claims that Dominguez is completely
non-responsive to verbal stimuli, refusing to acknowledge her
and their children. But the tape recordings of conversations
between Dominguez and his family originating from the MCC and
initiated by him belie that assertion. Not only did Dominguez
call collect from the MCC, making it known to the operator who
was calling and to whom he was calling, but he carried on
perfectly coherent conversations with Ilonka, Isabella
("Isa"), her daughter, and Josephina, the youngest daughter
born of Ilonka and Dominguez.
At one point on the tapes, Dominguez asked to speak directly
to his daughter and when she spoke to him in English at
different points in the conversation, Dominguez repeatedly
implored her to speak in Spanish. Government Exh. 25-1A, 2A.
Perhaps this was to avoid being understood on the tapes,
knowing that all MCC phone calls are taped, or perhaps it is
due to the fact that Dominguez understands Spanish better than
he does English and wanted to continue conversing with his
daughter. In any event, Dominguez made his needs known to the
child and they conversed in Spanish. In that conversation he
asked his daughter to "blow daddy a kiss," thus acknowledging
not only who she was, but, revealing that they share a
long-term father-daughter relationship. Moreover, the child
discussed her concerns about her mother, who was crying a lot
over the past few days. Dominguez was interested in learning
his daughter's perceptions of her mother's latest stresses,
intending to and in fact willingly eliciting meaningful
information from his daughter in that conversation. Indeed.
Dominguez was acting in as paternal a fashion as any father
could under the circumstances. This does not constitute the
conversation of a catatonic man.
I find Dr. Blackwell's and Ilonka's testimony incredible by
the objective evidence. Dominguez obviously perceives a
secondary gain by feigning mental incompetence
for he may potentially evade prosecution. Even Dr. Blackwell
admitted that the nail gun injury was slight and that he was
more impressed with the fact that Dominguez at some point was
hit in the head by a door, an injury which no other expert or
examiner felt was impressive in the least. Dr. Blackwell
admitted that he has testified numerous times in personal
injury cases and that in 90% of the cases, he testified in
favor of the plaintiff, perhaps indicating an overly
sympathetic diagnostician. No neurological pathology was
detected in Dominguez' brain, he simply displays curious times
of lucidity, and Dominguez is conveniently never lucid when
approached by doctors and medical personnel. Thus, this
indicates his voluntarily choosing to avoid "competence."
"[A] defendant has the right under the Sixth Amendment to be
present throughout his criminal trial." United States v. Hemsi,
901 F.2d 293, 296 (2d Cir. 1990). If the court determines that
a defendant's disruptive behavior is due to a mental disease or
defect and it is beyond "his rational control, it would be
forced to suspend or abort the trial." Id. However, if a
defendant knowingly insists on misbehaving "to such an extent
that his conduct is unduly disruptive," then he may be found to
have voluntarily chosen to absent himself from the proceedings
and he may be found to have waived his rights under the sixth
In this case, Dominguez has succeeded in convincing me that
he has a cognitive facility for aiding in his own defense and
understanding the charges against him. Indeed, that he has
gone to such lengths to avoid the same, merely indicates his
complete understanding of the gravity of criminal prosecution.
Additionally, he displays a present ability to consult with
his lawyer with a reasonable degree of rational understanding.
I have full confidence that Dominguez is psychologically adept
enough to assist counsel in his own defense and that indeed he
is now and has been malingering.
For the foregoing reasons, I find that Dominguez is well
able and competent to stand trial on the instant indictment.
After considering all of Dominguez' arguments, I find them to
be totally without merit. Therefore, this case will be set
down for an immediate trial. A final pretrial conference will
be held on May 2, 1991, at 9:30 a.m. in Courtroom 705.