The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge:
Defendant Vincent Gigante, charged in two indictments dated May 30, 1990 and June 10, 1993 with committing crimes between 1980 and 1991, has moved pursuant to 18 U.S.C. § 4241 for a hearing to determine his mental competency to stand trial.
The 1990 indictment charges that Gigante and others committed crimes of labor payoffs, extortions, and mail frauds. The 1993 indictment alleges that he and others murdered six persons between July 10, 1980 and March 15, 1982, engaged in conspiracies to murder three other persons between June 1982 and 1991, and committed further crimes of labor payoffs and extortion.
On June 13, 1990 Judge Raymond J. Dearie ordered pursuant to 18 U.S.C. § 4241(b) that a psychiatric examination of Gigante be conducted. On June 20, 1990 he appointed two psychiatrists, Dr. Jonas R. Rappeport and Dr. Daniel W. Schwartz, to conduct psychiatric examinations and report. Thereafter, Gigante was examined by those two doctors and by two psychiatrists of his choosing, Dr. Abraham L. Halpern and Dr. Stanley Portnow. All four made reports and later testified at hearings before this court.
Dr. Rappeport reported that Gigante was not competent to stand trial because he was unable to understand the proceedings against him or to assist in his defense. Dr. Schwartz in his written report said that he found Gigante incompetent to stand trial. At the hearings Dr. Schwartz testified that he felt he had an obligation to come to a conclusion as to whether Gigante was competent or not, that he was "in no position to prove" that what Gigante was telling him was false, and that therefore, despite his concern that Gigante was malingering, he "was willing to state" Gigante was incompetent.
Dr. Halpern and Dr. Portnow reported that Gigante was not mentally competent to stand trial because he could not understand the proceedings or assist counsel.
In their testimony the doctors gave much the same account of their meetings with Gigante. In response to their questions Gigante, for example, could not make simple calculations such as dividing 18 by 6 or multiplying 3 by 4, did not know that Barry Slotnick was his attorney, deemed God his attorney, said God talked to him but at God's direction would not reveal what was said, remembered hardly anything, said he had visions, could not grasp the charges read to him, never talked in complete sentences of more than three or four words, and heard "bad" voices but on God's instruction would not tell what they said. Indeed, when faced with many questions Gigante declined to answer because God told him not to.
In short, the impression that emerged from Gigante's sessions with the doctors was that of a total incompetent, wholly unable to hold any kind of job, let alone a leading role in any kind of organization.
In coming to their conclusions the doctors took into account the hospital reports made from 1969 on by Gigante's treating psychiatrists. One of them, Dr. Eugene D'Adamo, had been Gigante's psychiatrist for some fifteen years at the time of the hearing. The reports record Gigante's visits to the hospital approximately once every year and describe Gigante's behavior and demeanor in terms almost identical to those used by the four examining doctors.
The reports depict a similar pattern for each of Gigante's many admissions. He is admitted because of hallucinations, delusions, agitation, paranoia, depression, lethargy, memory loss, and inability to concentrate. Members of his family describe him as hostile, withdrawn, argumentative, and unmanageable. After a few days, sometimes a few weeks, he is discharged as "improved."
Dr. D'Adamo also testified and confirmed what the reports stated. He said that Gigante appeared incompetent during the fifteen years of the doctor's treatment and could not at any time during those years have been gainfully employed or have been head of a business or crime family.
The doctor recounted, for example, that Gigante had such a bad memory he would forget the names of his daughters or where he had been that morning, was unable to subtract 7 from 100, was incapable of uttering, and in all the years Dr. D'Adamo treated him never did utter, a sentence of more than two or three words, claimed to hear "bad" people say bad things but on God's instruction would inform only God what those voices said, never had a cogent conversation with the doctor, claimed to have had frequent hallucinations, and appeared paranoid when faced with strange objects. The doctor testified that Gigante displayed all these symptoms of incompetency consistently from about 1980 to the present.
All four of the examining doctors testified that new information could lead them to change their opinions. Before the hearings both Dr. Schwartz and Dr. Rappeport were asked whether their opinions would change if they were presented with clear and convincing evidence that Gigante had either (1) actively conducted the affairs of the Genovese Family during the time he says he was mentally ill, or (2) planned well in advance of their diagnoses a feigned insanity defense. Dr. Rappeport wrote on March 10, 1991 that such evidence might change his opinion. Dr. Schwartz wrote on March 8, 1991 that if presented with such evidence he would conclude that Gigante was malingering and was fit to proceed.
After the psychiatrists testified the court heard testimony from former high ranking Members of organized crime and other witnesses. They gave evidence of Gigante's criminal activities during the years from the 1970s through 1991, evidence that had never been presented to the four examining doctors or to Dr. D'Adamo. Based on all the evidence the court makes the following findings.
THE GENOVESE ORGANIZED CRIME FAMILY
For many years there have been five organized crime families in New York City, the Genovese Family, the Gambino Family, the Colombo Family, the Lucchese Family, and the Bonano Family. These five are part of a nationwide criminal organization known as La Cosa Nostra. Of the five the two largest, the Genovese and Gambino Families, each have had some three hundred "made" Members and numerous associates. The chief business of each Family has been the making of money by resort to crime.
The Genovese Family engages in numerous illegal activities, including gambling, extortion, loan sharking, labor racketeering, bid rigging, mail fraud, and murder. The Family has large interests in the construction, music, and garbage industries, and controls unions, bars, strip joints, restaurants, and trucking firms. It has earned money from crimes related to the Javits Center, the Fulton Fish Market, and the New York Coliseum. In short, the Genovese Family is no pick-up gang of petty thieves. It is an affluent, sophisticated, and well disciplined criminal organization.
Like the other four Families, the Genovese Family has a structure comparable to that of military organizations or large legitimate businesses. It has a chief executive, called the Boss, an Underboss, and a Consigliere or counselor. These three officers are called the "Administration."
Below the Administration are Captains, the executive heads of crews composed of made Members, also known as soldiers, and associates. The Administration and the Captains receive shares of the proceeds from the crimes committed by the soldiers and associates. Controversies between Families are resolved by a Commission, consisting of, among others, the heads of the five Families, including the Boss of the Genovese Family.
Induction as a Member of a Family is coveted. It is an honor as well as a harbinger of large increases in income. But admission entails responsibilities. It requires, among other things, taking an oath of omerta, that is, an oath to remain silent to the outside world about the criminal affairs of the Family, never to betray anyone in the crime Family or in organized crime, and never to reveal to law enforcement personnel anything that might incriminate anyone in organized crime. The penalty for violation of this oath is death.
The tight organization of each of the five crime Families, their respect for and cooperation with each other, and the ferocity with which a breach of the oath of silence is punished, explain in significant part how difficult it is for law enforcement to obtain evidence of the crimes committed by Members of a Family. Unless some of those within organized crime dare to risk annihilation there is seldom a lively possibility of making a case against the leaders of organized crime.
Gigante has for many years been an active Member of the Genovese Family. By the late 1960s or early 1970s he had become a Captain. He was known as a tough, smart, and powerful Captain. He thereafter rose to become Consigliere and the behind the scenes leader of the Family during the reign of Anthony "Fat Tony" Salerno as Boss.
After Salerno was indicted and arrested in 1985 Gigante became the Boss in title as well as in fact. As such he ran the affairs of the Genovese Family. In 1990 after Gigante himself was indicted he established an "acting" Administration of the family. The official Administration was unchanged, and Gigante continued to run the Family, keeping tabs on those he had installed as the acting Administration.
From the credible testimony of the witnesses, including former Members of organized crime, it is clear that Gigante occupied high positions in the Genovese Family from at least the early 1970s until September of 1991 and as such performed executive functions.
GIGANTE'S MEASURES TO HIDE HIS ILLEGAL ACTIVITIES
Quite naturally Members of organized crime place great importance on preventing law enforcement from detecting their activities. The punishment for violation of the oath of omerta ensures that every Member take seriously the need to mask those activities.
It was only good sense for those engaged in organized crime to do things to minimize the risk of surveillance. Common practices were, for example, to avoid the use of private telephones that could be bugged, to try and "lose" law enforcement surveillance cars through evasive driving, and to hold criminal conversations out on the street rather than indoors where they might be overheard on a wire tap. Over the years Gigante took all such measures but went to even greater lengths than did most Members of organized crime. On one occasion in the late 1970s he told his criminal associates that, as a leader of the Genovese Family he did not wish to attend unnecessary Commission meetings because they might be "bugged" by law enforcement and he had "put a lot of time" into his "crazy act."
He told other influential Members of the Family to spread the word to the outside world that he was crazy, and they did so. In fact, one of them was caught on tape on February 2, 1985 saying that if Gigante were "pinched" in a pending organized crime case, "all the finagling" and "manipulating to fool the government" and "all them ...