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MICHAEL v. OFFICE OF THRIFT SUPERVISION

December 29, 1993

MICHAEL COUSIN, Plaintiff,
v.
OFFICE OF THRIFT SUPERVISION, DEPARTMENT OF TREASURY; JOHN F. DOWNEY, DEPUTY DIRECTOR and ACTING DIRECTOR OF THRIFT SUPERVISION; and ANGELO A. VIGNA, NORTHEAST DIRECTOR OF THE OFFICE OF THRIFT SUPERVISION, Defendants.



The opinion of the court was delivered by: EUGENE H. NICKERSON

 NICKERSON, District Judge:

 Plaintiff brought this action under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, seeking a declaration that a suspension order issued by defendant Office of Thrift Supervision (the defendant), suspending plaintiff from engaging in certain banking activities is no longer in effect.

 The court has jurisdiction based on Federal questions, pursuant to 28 U.S.C. § 1331, as the complaint alleges violations of the Fifth Amendment of the United States Constitution and 12 U.S.C. § 1818(g), providing procedures for certain administrative suspensions from banking activities. The defendant has moved to dismiss the complaint, and plaintiff has cross-moved for summary judgment.

  I

 The papers submitted by the parties and the file in the case of United States v. Cousin, CR 90-745 (EHN), show, in substance, the following.

 For some years plaintiff was Chairman of the Board of Directors and Chief Executive Officer of Cross County Federal Savings Bank (the Bank). On August 8, 1990 the United States charged plaintiff in a criminal complaint with bribery, in violation of 18 U.S.C. § 201. Based on the charges, the defendant issued a notice of suspension from participating in the Bank's affairs pursuant to 12 U.S.C. § 1818(g)(1). That section gives the defendant the power to suspend a bank official based on pending charges until the charges are "finally disposed of or until [the suspension is] terminated by the agency."

 On September 9, 1990 a grand jury indicted plaintiff in eight counts, six charging that on six occasions between May 27, 1987 and December 19, 1989 plaintiff paid bribes to a special agent of the Internal Revenue Service. The two other counts charged plaintiff (a) with conspiring to induce a special agent of the Internal Revenue Service to receive a bribe so that he would investigate other people and (b) with aiding and abetting a bribe of a special agent of the Internal Revenue Service.

 Plaintiff then requested a hearing to challenge his notice of suspension, pursuant to 12 U.S.C. 1818(g)(3). He had an informal administrative hearing on March 1, 1991. The presiding officer recommended that the defendant keep the suspension in force, and on July 12, 1991 the Director of defendant adopted that recommendation. The Director's order stated that the "suspension and prohibition shall continue in effect until the final disposition of the indictment [sic] upon which the Notice was based."

 Plaintiff retained an able and experienced lawyer, James M. LaRossa, to represent him in the criminal case. Mr. LaRossa urged the court that plaintiff was mentally incompetent to stand trial.

 The court held a hearing on that issue. Defense counsel called a psychiatrist, who testified that plaintiff was not in a position to consult with his lawyers with a reasonable degree of rational understanding, that he would not be able to listen to the suggestions his attorney might have, and that he would not even be able to listen to the four years worth of tape recordings of himself or read the transcripts of those recordings.

 Michael S. Ross, a partner of Mr. LaRossa, also testified for plaintiff at the hearing. Mr. Ross said that plaintiff talked about suicide "all the time," said the charges in the indictment were "meaningless," but at the same time refused to help his attorneys or even discuss the case with them.

 The psychiatrist for the government, Naomi Goldstein, testified that although plaintiff had the capacity to deal with the criminal charges he had very successfully avoided dealing with them and would rather sit by passively and not put on a defense than actively participate in a trial that might end in a conviction.

 After the hearing Mr. LaRossa made a submission saying that plaintiff was not physically capable or mentally competent to stand trial. The court then held a status conference on April 17, 1992. Mr. LaRossa reported that plaintiff was not getting better, indeed that he had developed serious diabetes and his mental condition was worse, although he wanted "an immediate trial so that he can proclaim his innocence."

 The Assistant United States Attorney, Jodi Avergun, suggested that plaintiff's physical problems be addressed because if he were found mentally incompetent the court would have to detain him for examination, which she thought ...


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