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July 13, 1993

JOHN GAMBINO, et al., Defendants.

The opinion of the court was delivered by: PETER K. LEISURE

 LEISURE, District Judge,

 Defendant John Gambino has brought a motion requesting that the Court declare him incompetent to stand trial due to his mental and physical health. For the reasons stated below, the motion is denied.


 In May 1992, after a substantial pretrial delay due to the appeal of a double jeopardy issue to the United States Supreme Court as well as the need for defense counsel to prepare adequately for the lengthy trial, the Court set a trial date of January 11, 1993. In early September 1992, John Gambino fled the jurisdiction and was apprehended on September 20, 1992 by law enforcement officials in Fort Lauderdale, Florida. On September 28, 1992, a grand jury filed the ninth superseding indictment which, inter alia, added a bail jumping count against defendants John Gambino and Joseph Gambino.

 On October 23, 1992, John Gambino renewed his medical severance motion based upon the medical evidence previously gathered by defense counsel in 1990. The Government, in opposing the application, submitted the reports of Dr. Weld and Dr. Cohen from 1990 stating, respectively, that John Gambino was physically and mentally competent to stand trial.

 On December 21, 1992, the Court issued an Opinion and Order denying the motion for medical severance. The Court considered the five factors set forth in United States v. Doran, 328 F. Supp. 1261, 1263 (S.D.N.Y. 1971) (Frankel, J.) and its progeny -- the medical evidence, the defendant's activities outside the courthouse, the possibility of precautionary measures, the usefulness of a continuance or severance, and the magnitude and seriousness of the charges. Weighing these various factors, the Court found that a medical severance for John Gambino in the instant case was unwarranted and, under the circumstances, a hearing on this issue was not required.

 The Court also directed the Government to conduct a mental and physical examination of John Gambino to update his condition and to assist the Court in determining what precautionary measures, if any, the Court should take during the course of the trial with respect to John Gambino's health. On December 23, 1992, an examination was conducted by a cardiologist, Dr. Ira Cliff Schulman. Dr. Schulman found Mr. Gambino's health to be unchanged since his last examination in November 1992 and concluded that he appeared stable enough from a cardiac standpoint to commence with his trial. Dr. Schulman also suggested that John Gambino should take a small dosage of beta-blocker which, in addition to his current medical regimen, would help maintain a stable cardiac status during the trial. See Report of Dr. Ira Cliff Schulman, dated December 23, 1992.

 On December 28, 1992, John Gambino was examined by a neurologist, Dr. Mitchell S. Raps, who described Mr. Gambino as being alert and oriented. Dr. Raps noted that there was no impairment of John Gambinos communicative skills (i.e. aphasia), but also indicated that there appeared to be some difficulty with memory. *fn1" See Report of Dr. Mitchell S. Raps, dated December 28, 1992. On January 5, 1993, John Gambino received a CAT scan. Subsequent to the completion of the series of physical and mental tests, no specific precautionary measures (other than the possible use of additional medication for his heart) were recommended to the Court.

 On January 6, 1993, five days before jury selection was scheduled to begin, John Gambino made a renewed motion for a psychiatric examination, an examination by his own cardiologist and for a hearing as to his mental and physical ability to stand trial. This motion was brought by John Gambino's trial counsel, George Santangelo, Esq., along with Ruth M. Liebesman, Esq., who had been retained as "medical counsel" to handle the legal issues relating to John Gambino's health. *fn2" The motion primarily relied upon the evidence and arguments rejected by the Court in the medical severance motion, but also argued that more recent developments supported this renewed motion. More specifically, counsel argued that John Gambino had been experiencing dizziness and lightheadedness in the early days of January. In addition, counsel noted that John Gambino was allergic to the beta-blocker suggested by Dr. Schulman in his most recent report. *fn3" See Memorandum of Law in Support of Defendant John Gambino's Renewed Motion, dated January 6, 1993 ("John Gambino's Memorandum of Law"), at 4-6.

 While the Government objected to the reopening of the competency issue, the Government did not object to allowing John Gambino's doctors to again examine Mr. Gambino as long as such examinations (1) focused on precautionary measures which may be taken at trial with respect to Mr. Gambino's health, (2) did not delay the trial, and (3) were conducted in a manner and location which would alleviate the security concerns of the Metropolitan Correctional Center ("MCC") where John Gambino was being held. See Government's Letter to the Court, dated January 7, 1993.

 The psychiatric and psychological examinations were conducted by Mr. Gambino's doctors on January 12 and 21, 1993 and February 1, 1993. In addition, Mr. Gambino was examined by his own cardiologist, Dr. Dennis S. Reison, on February 12, 1993. On March 17, 1993, the report of John Gambino's psychiatrist, Dr. Robert Lloyd Goldstein, was submitted to the Court. Mr. Gambino's medical counsel, Ruth Liebesman, Esq., also contacted the Court at that time and requested a hearing date. *fn4"

 On April 6, 1993, the Court conducted the competency hearing. At the conclusion of the hearing, the Government and medical counsel for John Gambino agreed to set a briefing schedule in which each side could summarize the evidence and present their respective arguments to the Court. The Court received written submissions from both sides and, upon receipt of John Gambino's reply papers on May 6, 1993, the renewed motion with respect to Mr. Gambino's competency to stand trial became fully submitted before the Court.

 On June 4, 1993, the jury returned a verdict of guilty on the bail jumping count as to John Gambino and Joseph Gambino, but was unable to reach a verdict on the remaining counts. The Court has set November 1, 1993 as the date for the new trial on the remaining counts.

 While John Gambino's original pretrial motion for a medical severance focused primarily upon his heart problems, this renewed competency motion has switched its focus to mental problems including Mr. Gambino's purported inability to follow the proceedings, assist his trial counsel, and testify effectively in his own defense. With respect to this latest competency motion, the heart ailment was raised in relation to the effect such an ailment may have on his ability to testify in his own behalf at trial. For example, at the hearing, Dr. Gambino's psychiatrist testified about the cardiac risks associated with testifying at trial. See Transcript of April 6, 1993 Hearing ("Hearing Transcript), at 50-51. Therefore, in deciding the issue of mental competency, the Court also will address Mr. Gambino's physical problems to the extent that such problems may impact on his mental competence and general ability to stand trial.


 Pursuant to 18 U.S.C. § 4241(d), the Court must declare John Gambino incompetent to stand trial if, after a hearing on the matter, "the 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." 18 U.S.C. § 4241(d). The Second Circuit has noted "the test of competency under this section is 'whether [the defendant] 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 against him.'" United States v. Hemsi, 901 F.2d 293, 295 (2d Cir. 1990) (quoting Dusky v. United States, 362 U.S. 402, 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960) (per curiam)); see also United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986), cert. denied, 479 U.S. 1036, 93 L. Ed. 2d 841, 107 S. Ct. 888 (1987); United States v. Oliver, 626 F.2d 254, 258 (2d Cir. 1980); Newfield v. United States, 565 F.2d 203, 206 (2d Cir. 1977).

 In United States v. Hemsi, supra, the Second Circuit stated that "the inquiry involves an assessment of whether the accused can assist 'in such ways as providing accounts of the facts, names of witnesses, etc.'" 901 F.2d at 295 (quoting United States v. Mercado, 469 F.2d 1148, 1152 (2d Cir. 1972)). However, the Court also noted that "it is not sufficient merely that the defendant can make a recitation of the charges or the names of witnesses, for proper assistance in the defense requires an understanding that is 'rational as well as factual.'" Hemsi, 901 F.2d at 295 (quoting Dusky v. United States, 362 U.S. at 402).

 In assessing the competence of a defendant, the Court can take into account a number of factors, including the medical evidence and the Court's observations of the defendant's demeanor during the course of the trial. As discussed in detail below, the Court has considered the various ...

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