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August 28, 1996


Eugene H. Nickerson, U.S.D.J.

The opinion of the court was delivered by: NICKERSON

NICKERSON, District Judge:

 Defendant Vincent Gigante and others are charged in an indictment dated May 30, 1990 with committing crimes of labor payoffs, extortions, and mail frauds. A second indictment dated June 10, 1993 alleges that Gigante 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.

 Gigante's attorneys moved pursuant to 18 U.S.C. § 4241 for a hearing to determine his mental and physical competency to stand trial.


 On June 13, 1990, Judge Raymond J. Dearie ordered psychiatric examinations of Gigante pursuant to 18 U.S.C. § 4241(b). 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 Dr. Abraham L. Halpern and Dr. Stanley Portnow, two psychiatrists selected by his attorneys.

 After examining Gigante and reviewing his medical records, all four psychiatrists made reports and testified that Gigante was not competent to stand trial because he was unable to understand the proceedings against him or to assist in his defense.

 In reaching this conclusion, the psychiatrists took into account Gigante's behavior and demeanor during their sessions with him and also the hospital reports made from 1969 on by Gigante's treating psychiatrists. In United States v. Gigante, 925 F. Supp. 967 (E.D.N.Y. 1996) ("Gigante I "), familiarity with which is assumed, the court set forth the substance of these reports and of the doctors' accounts of their meetings with Gigante.

 The examining doctors' diagnoses of incompetence were qualified. All four 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 such evidence would lead him to 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.

 In Gigante I the court made various findings of fact (the "Findings") based on the evidence presented by these witnesses. The court found 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." For example, Gigante took an active part in high level meetings and managed the internal organization and external affairs of the Genovese Family. The court also found that during this period Gigante took extreme measures--including a "crazy act" in which he feigned insanity--to conceal his illegal activities.

 The court submitted the Findings to the four psychiatrists, directed them to accept them as true, and asked each to testify as to what extent, if any, the Findings altered their prior assessment of Gigante's competency to stand trial.

 On May 28, 1996, Dr. Rappeport testified that the Findings "make me think that it is quite possible that [Gigante] is competent to stand trial and that much or all of his mental illness has been malingered." During cross-examination by Gigante's attorney, Dr. Rappeport also said that it is his opinion "to a medical degree of certainty" that Gigante is malingering.

 On July 10, 1996, Dr. Schwartz testified that the Findings "convince me that [Gigante] is fit to proceed."

 Dr. Halpern testified on May 28, 1996 and July 10, 1996. On May 28, 1996, he stated that the Findings had not changed his opinion that Gigante was incompetent to stand trial. On July 10, 1996, Dr. Halpern reiterated his opinion that Gigante is "incompetent to stand trial." At this time, Dr. Halpern also stated that he could not accept the finding that Gigante was competent and malingering in 1991. He felt that accepting this finding would require him to accept that Gigante is presently competent and malingering, a point that he was unwilling to concede.

 On August 22, 1996, Dr. Portnow testified that after reading and accepting the Findings he concluded that in 1991 Gigante "was competent to stand trial." Dr. Portnow said that he believes to a reasonable degree of medical certainty that Gigante has been incompetent to stand trial since 1995. Before reading the findings, Dr. Portnow had attributed Gigante's incompetency to the combined effects of schizo-affective disorder and organic brain disease, but he now believes that Gigante suffers only from organic brain disease, which he said has become more serious since 1995.

 Dr. Portnow said that he examined Gigante at his home on April 16, 1996 and at Saint Vincent's Hospital in Westchester (the "Hospital") on August 4 and 6, 1996. During these examinations, Gigante displayed impaired cognition and short-term memory, fabricated stories to hide gaps in his memory, fixated on and repeated certain words, and behaved in a "childlike" manner. Dr. Portnow said that Gigante previously had displayed these symptoms, but that on these three occasions the symptoms appeared generally "much more prominent." It was unclear to the court just how someone incapable of functioning in any area of life, as Dr. Portnow and others had previously described Gigante's condition over the years, could have deteriorated still further.

 Two cardiologists, Dr. Bernard M. Wechsler and Dr. Francis M. Weld, testified about Gigante's physical competency to stand trial. Dr. Wechsler first examined Gigante in 1980 and has been his treating cardiologist since 1986. Dr. Weld has examined Gigante on several occasions beginning on September 19, 1990 and has reviewed the medical records. Dr. Wechsler and Dr. Weld testified before Judge Dearie on October 15 and 17, 1990 and before this court on January 30, 1995. Both doctors also submitted written reports describing Gigante's medical history and present physical condition.


 A criminal defendant is mentally competent to stand trial if he has (1) "a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and (2) "a rational as well as a factual understanding of the proceedings against him." United States v. Nichols, 56 F.3d 403, 410 (2d Cir. 1995) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824). The Court of Appeals for the Second Circuit has stated that "some degree of mental illness cannot be equated with incompetence to stand trial." United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986), cert. denied, 479 U.S. 1036, 107 S. Ct. 888, 93 L. Ed. 2d 841 (1987).

 Under 18 U.S.C. § 4241(d), the court determines competency by a preponderance of the evidence. Although that section does not in terms allocate the burden of proof, the Supreme Court in referring to it has stated in dicta that "the accused in a federal prosecution must prove incompetence by a preponderance of the evidence." Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 1380, 134 L. Ed. 2d 498 (1996).

 One judge in this district has also taken this position when the accused claims incompetency. See United States v. Mason, 88 CR 496 (E.D.N.Y. Jan. 7, 1994) (Korman, J.). The Court of Appeals has not yet decided the issue. See Nichols, 56 F.3d at 410. In any event "the allocation of the burden of proof to the defendant will affect competency determinations only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent." Medina v. California, 505 U.S. 437, 112 S. Ct. 2572, 2580-81, 120 L. Ed. 2d 353 (1992).

 In determining Gigante's mental competency to stand trial, the court considers "a number of factors, including medical ...

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