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December 15, 1997


The opinion of the court was delivered by: WEINSTEIN


 I. Introduction

 II. Law on Competency at Sentencing

A. Standard
B. Burden of Proof

 III. Summary of Factual Conclusions

 IV. Evidence and Findings of Fact

A. Exhibits
B. Defense Experts
1. William H. Reid, M.D.
2. Monte S. Buchsbaum, M.D.
3. Donald F. Klein, M.D.
4. Norman G. Gutheil, M.D.
5. Stanley Portnow, M.D.
6. Wilfred van Gorp, Ph.D.
7. Abraham L. Halpern, M.D.
8. Eugene J. D'Adamo, M.D.
C. Government Experts
1. Jonathan D. Brodie, Ph.D., M.D.
2. Robert Asarnow, Ph.D
3. Mark J. Mills, J.D., M.D.
D. Report of Doctors at Butner
E. Lay Witnesses
1. Christopher Dale Sexton
2. Sharon Brown

 V. Conclusion

 Having been found guilty by a jury of various serious charges and had his motion to set aside the verdict denied, defendant moves "for an order pursuant to 18 U.S.C. § 4241 declaring him to be incompetent [to be sentenced], and committing him to the custody of the Attorney General for institutionalization and treatment in an appropriate facility pursuant to the provisions of that section of law." (Def. Brief, November 21, 1997 at 1.) Based upon the evidence adduced at an extensive evidentiary hearing, the motion is denied. The defendant is competent to be sentenced.

 The factual and legal issues at prior phases of the case have been fully explored. See, e.g., United States v. Gigante, 166 F.R.D. 3 (E.D.N.Y. 1996) (Nickerson, J.), aff'd, 85 F.3d 83 (2d Cir. 1996) (bail); United States v. Gigante, F. Supp. , 1997 U.S. Dist. LEXIS 18635, 1997 WL 677083 (E.D.N.Y. Oct. 29, 1997) (Weinstein, J.) (post-verdict motions); United States v. Gigante, 971 F. Supp. 755 (E.D.N.Y. 1997) (Weinstein, J.) (testimony of witness by two-way closed-circuit television); United States v. Gigante, 1996 U.S. Dist. LEXIS 21753, 1996 WL 497050 (E.D.N.Y. Aug 28, 1996) (Nickerson, J.) (competence to stand trial); United States v. Gigante, 925 F. Supp. 967 (E.D.N.Y. 1996) (Nickerson, J.) (directions to experts).

 II. Law on Competency at Sentencing

 A. Standard

 The law as it relates to capacity, mental illness, and sentencing was outlined at some length in United States v. Gigante, F. Supp. , 1997 U.S. Dist. LEXIS 18635, 1997 WL 677083 (E.D.N.Y. Oct. 29, 1997). Nevertheless, some further discussion of the legal standards that apply at sentencing is warranted.

 Over thirty years ago the Supreme Court announced the basic standard for determining a defendant's competency to participate in criminal proceedings in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). Rationality and ability to consult with an attorney were stressed. The Court held that the test for competency is whether a 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.

 Dusky, 362 U.S. at 402 (quotation marks omitted).

 Dusky remains the law. See Cooper v. Oklahoma, 517 U.S. 348, , 116 S. Ct. 1373, 1377, 134 L. Ed. 2d 498 (1996) ("the test for competency is well-settled"); Godinez v. Moran, 509 U.S. 389, 402, 113 S. Ct. 2680, 2688, 125 L. Ed. 2d 321 (1993) ("Dusky formulation" is the standard for determining competency). Its reach, however, is somewhat unclear. The competence test set forth in Dusky uses the rather broad term "proceedings" to describe that which a criminal defendant must be able to comprehend. Dusky, 362 U.S. at 402. Other text in the opinion is more limiting, referring only to a defendant's "present competency to stand trial." Dusky, 362 U.S. at 403. The decision itself is only three paragraphs long. No reference is made in the opinion to the various stages of prosecution, much less to the penalty phase. Thus, it is debatable whether the Dusky test was designed to apply to the sentencing portion of a criminal proceeding.

 Supreme Court caselaw following Dusky does not answer this question. So far as this court's research has shown, no post-Dusky Supreme Court opinions have explicitly held that this competency standard applies to sentencing even though the Court has repeatedly revisited the issue of competence, applying the Dusky standard. See, e.g., Godinez v. Moran, 509 U.S. 389, 125 L. Ed. 2d 321, 113 S. Ct. 2680 (test for determining whether a defendant is competent to plead guilty or to waive the right to counsel is the same as that set forth in Dusky).

 In a concurrence, Justice Kennedy, joined by Justice Scalia, in Godinez, 509 U.S. at 403-04, did address the Dusky standard in a way that tangentially touched upon sentencing. Justice Kennedy's message is somewhat conflicting. The Justice wrote:

We have not suggested that the Dusky competence standard applies during the course of, but not before, trial. Instead, that standard is applicable from the time of arraignment through the return of the verdict.

 Godinez, 509 U.S. at 403 (emphasis added). This passage appears to constrain Dusky's application to pretrial proceedings through the guilt-innocence phase of a trial. Speaking more broadly, Justice Kennedy went on to say:

The Due Process Clause does not mandate different standards of competency at various stages of or for different decisions made during the criminal proceeding. That was never the rule at common law, and it would take some extraordinary showing of the inadequacy of a single standard of competency for us to require States to employ heightened standards.

 Godinez, 509 U.S. at 404 (emphasis added). This section would support a finding that Dusky does apply to sentencing. Both of these passages, however, must be viewed in the light of Justice Kennedy's disclaimer at the outset of his opinion referring to serving a sentence, but skipping its imposition:

We must leave aside in this case any question whether a defendant is absolved of criminal responsibility due to his mental state at the time he committed criminal acts and any later question about whether the defendant has the minimum competence necessary to undergo his sentence.

 Godinez, 509 U.S. at 403 (emphasis added).

 Even though the Court has not announced an explicit ruling on this issue, "surely, the sentencing process necessitates that the defendant possess both a present ability to consult with [a] lawyer with a reasonable degree of rational understanding, and a rational as well as factual understanding of the proceedings." United States v. Pellerito, 878 F.2d 1535, 1544 (1st Cir. 1989) (citation and internal quotation marks omitted). In this circuit, cases have suggested that Dusky's competency requirement applies to both the trial and the sentencing phases of a criminal proceeding, with the same standard applying to both. See, e.g., United States v. Nichols, 56 F.3d 403, 410-413 (2d Cir. 1995) (explaining in first part of opinion that "the Supreme Court [in Dusky ] has set forth a two-prong test for determining competency to stand trial" and in the second part of opinion upholding district court's decision finding defendant competent both to stand trial and be sentenced); Wojtowicz v. United States, 550 F.2d 786, 790, 793 (2d Cir.) cert. denied, 431 U.S. 972, 97 S. Ct. 2938, 53 L. Ed. 2d 1071 (1977) (citing to Dusky and remanding the case "to the district court for a hearing limited to the issue of appellant's competency at sentencing"); United States v. Sullivan, 406 F.2d 180, 185 (2d Cir. 1969) (recognizing that the predecessor competency statute to 18 U.S.C. § 4241, 18 U.S.C. § 4244, provided that "no part of a criminal proceeding may be proceeded with against a defendant who is at the time insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him . . . .").

 The requirement that a defendant be competent during a criminal proceeding is predicated upon a defendant's right to due process. See, e.g., Godinez, 509 U.S. at 402 (Due Process Clause requires no more than the Dusky standard); Medina v. California, 505 U.S. 437, 448, 112 S. Ct. 2572, 2579, 120 L. Ed. 2d 353 (1992) ("due process considerations require suspension of the criminal trial until such time, if any, that the defendant regains the capacity to participate in his defense and understand the proceedings against him"); Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 838, 15 L. Ed. 2d 815 (1966) ("State concedes that the conviction of an accused person while he is legally incompetent violates due process"). As was noted in United States v. Gigante, F. Supp. , 1997 U.S. Dist. LEXIS 18635, 1997 WL 677083 (E.D.N.Y. Oct. 29, 1997), a defendant is entitled to due process not only at trial, but at sentencing. Sentencing is a "critical stage of the criminal proceeding." Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1204-05, 51 L. Ed. 2d 393 (1977); United States v. Prescott, 920 F.2d 139, 143 (2d Cir. 1990) (defendant has due process rights at sentencing).

 Some cases characterize sentencing as a lesser part of the criminal prosecution on the assumption that a defendant need not function as well then as at trial. See, e.g., Hall v. United States, 410 F.2d 653, 658 (4th Cir.), cert. denied, 396 U.S. 970, 90 S. Ct. 455, 24 L. Ed. 2d 436 (1969) ("when the issue of mental competency relates only to the time of sentencing, there is less danger that any substantive rights of a defendant would be prejudiced if he then suffers some degree of incompetence"). Yet, even under the Federal Sentencing Guidelines where sentencing can be somewhat mechanical, a defendant should be as capable of defending himself with the aid of an attorney when facing his sentencer as when facing a jury.

 It must be concluded that the Constitution requires the Dusky standard to apply at the penalty phase of a prosecution. Cf. Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1204, 51 L. Ed. 2d 393 (1977) ("it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause"); United States v. Fatico, 458 F. Supp. 388 (E.D.N.Y. 1978), aff'd 603 F.2d 1053 (2d Cir. 1979) (due process right to an evidentiary hearing at sentencing on disputed facts).

 Dusky's requirements and the procedures for raising a claim of incompetence are now codified. The current competency statute, Section 4241 of Title 18 of the United States Code, provides that if a:

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.

 18 U.S.C. § 4241(d). See also Insanity Defense Reform Act of 1984, Sen. R. No. 98-225, at 236 (1983), reprinted in 1984 U.S.C.C.A.N. (98 Stat.) 3182, 3418 ("This test of competency, in essence, adopts the standards set forth by the Supreme Court in Dusky v. United States."). Consistent with the constitutional requirement, the statute suggests that its provisions apply to the sentencing phase. According to the statute, the issue of competence may be raised:

at any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant.

 18 U.S.C. § 4241(a)(emphasis added).

 It might be argued that use of the words "prior to" rather than "through" or "including" were meant to exclude sentencing from the statute's reach. This conclusion assumes Congress was not aware of the caselaw just described supporting application of due process protections to this vital phase of criminal proceedings -- a wholly unjustified slur on the legislature.

 The phrase "prior to the sentencing" includes immediately prior to the sentencing, implying as a practical matter, that it means "during sentencing" as well. See United States v. Garrett, 903 F.2d 1105, 1115-16 (7th Cir. 1990) ("the statutory language [of 18 U.S.C. § 4241] suggests, the need for competency also extends beyond trial to the sentencing phase of a proceeding . . ."). Since almost all prosecutions end in a plea of guilty rather than a trial, sentencing is usually the most critical phase of the criminal proceeding.

 The statutory requirement that defendant understand both the "nature" of the sentencing and its "consequences" implies that he understand why he is being punished. If so, required is an appreciation of the difference between right and wrong, a memory of the criminal act and of the trial or plea, and an understanding of the nature of the prospective punishment. The ability to assist in the defense is essentially equivalent to the ability to assist in sentencing.

 This is not to say that a person suffering from a mental disease or deficit may never be sentenced. Mental illness is not equivalent to mental incompetence. United States v. Auen, 846 F.2d 872, 878 (2d Cir. 1988); United States v. Vamos, 797 F.2d 1146, 1150-51 (2d Cir. 1986), cert. denied, 479 U.S. 1036, 107 S. Ct. 888, 93 L. Ed. 2d 841 (1987); Newfield v. United States, 565 F.2d 203, 206 (2d Cir. 1977); United States v. Gambino, 828 F. Supp. 191, 201 (S.D.N.Y. 1993); United States v. Adams, 297 F. Supp. 596, 597 (S.D.N.Y. 1969). "The presence of some degree of mental illness is not to be equated with incompetence to be sentenced." United States v. Hall, 410 F.2d 653, 658 (4th Cir. 1969).

 B. Burden of Proof

 While Dusky did not address the issue of burdens of proof and persuasion in the competency arena, Congress did. Section 4241 of Title 18 of the United States Code provides that the preponderance of the evidence standard governs federal competency proceedings. 18 U.S.C. § 4241(d). The statute does not specify which side bears the burden. Legislative history does little to provide additional guidance. The Senate Report simply states: "Subsection (d) of section 4241 provides that the court must make a determination with respect to the defendant's competency based upon a preponderance of the evidence." Insanity Defense Reform Act of 1984, Sen. R. No. 98-225, at 236 (1983), reprinted in 1984 U.S.C.C.A.N. (98 Stat.) 3182, 3418.

 In 1989 the Second Circuit explained: "The federal statute providing for competency hearings does not allocate the burden of proof, and neither the Supreme Court nor this court has decided as a matter of statutory construction whether the government or defendant bears the burden." See United States v. Nichols, 56 F.3d 403, 410 (2d Cir. 1995). Recently, however, the Supreme Court provided guidance, explaining, albeit in dicta, that under Section 4241 it is the accused who must prove incompetence. See Cooper v. Oklahoma, 517 U.S. 348, , 116 S. Ct. 1373, 1380, 134 L. Ed. 2d 498 (1996) ("Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence."); see also United States v. Morgano, 39 F.3d 1358, 1373 (7th Cir. 1994), cert. denied, 515 U.S. 1133, 115 S. Ct. 2559, 132 L. Ed. 2d 813 (1995) ("the starting point . . . is the notion that a criminal defendant is presumed to be competent to stand trial and bears the burden to proving otherwise"). But cf., e.g., Brown v. Warden Great Meadow Correctional Facility, 682 F.2d 348, 351 (2d Cir.), cert. denied, 459 U.S. 991, 103 S. Ct. 349, 74 L. Ed. 2d 388 (1982) (discussion of New York law placing burden of proving competency on state); United States v. Teague, 956 F.2d 1427, 1431 n.10 (7th Cir. 1992) (reasonable cause for believing incompetency is in issue needed before hearing is required).

 Placing the burden of proving incompetence at sentencing on the defendant is defensible as a matter of policy. First, based on the fact that only a small minority of defendants are incompetent to be sentenced, it can be assumed, absent proof to the contrary, that any particular defendant is competent. See Medina v. California, 505 U.S. at 449; Cooper v. Oklahoma, 116 S. Ct. at 1377; United States v. Morgano, 39 F.3d at 1373. Second, family and advisors to the proponent of the claim are likely to have more knowledge of his condition, justifying the rule that he is the party to whom the delegation of the burden should be made. See Cooper, 116 S. Ct. at 1382 ("the difficulty of ascertaining where the truth lies may make it appropriate to place the burden of proof on the proponent of an issue"). Fortunately, only in the rarest of circumstances will allocating the burden to one party or the other at a competence hearing result in a different decision on the issue of competence. Medina, 505 U.S. at 449; Nichols, 56 F.3d at 410-11 ("where the evidence is in equipoise" the burden may come into play). In the instant case, the evidence clearly supports a finding of competency under the preponderance standard.

 III. Summary of Factual Conclusions

 All of the experts assisting the court in dealing with the difficult questions surrounding diagnosis of defendant's mental condition were able, ethical, and candid. They all met the standards of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). That the court did not credit the conclusions of those experts tendered by the defendant constitutes no suggestion of lack of confidence in their professional skills and veracity. The court has also had the benefit of opinions from the experts tendered by the government as well as extensive evidence at the trial and other proceedings. There was strong evidence detailing defendant's criminal conduct and feigning of mental illness over long periods while he was supervising a major, complex criminal enterprise as well as before the trial, during the trial, and since the trial.

 Legal decisions of the courts may, as in the present case, differ from those of some physicians, psychiatrists, and others involved in the care of those with apparent mental disorders. As the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, xxiii (1994) (DSM-IV) warns, a determination of legal competence is not equivalent to a medical diagnosis, and a medical diagnosis does not necessarily determine level of impairment:

When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a "mental disorder," "mental disability," "mental disease," or "mental defect." In determining whether an individual meets a specified legal standard (e.g., for competence, criminal responsibility, or disability), additional information is usually required beyond that contained in the DSM-IV diagnosis. This might include information about the individual's functional impairments and how these impairments affect the particular abilities in question. It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability.

 DSM-IV, under the heading of "Malingering," suggests that pre-trial, trial, and post-trial feigning of defendant and the reasons for his or her actions must be considered by the court in determining competency. The full definition in DSM-IV of "Malingering" reads as follows:

V65.2 Malingering
The essential feature of Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs. Under some circumstances, Malingering may represent adaptive behavior -- for example, feigning illness while a captive of the enemy during wartime.
Malingering should be strongly suspected if any combination of the following is noted:
1. Medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for examination)
2. Marked discrepancy between the person's claimed stress or disability and the objective findings
3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen
4. The presence of Antisocial Personality Disorder
Malingering differs from Factitious Disorder in that the motivation for the symptom production in Malingering is an external incentive, whereas in Factitious Disorder external incentives are absent. Evidence of an intrapsychic need to maintain the sick role suggests Factitious Disorder. Malingering is differentiated from Conversion Disorder and other Somatoform Disorders by the intentional production of symptoms and by the obvious, external incentives associated with it. In Malingering (in contrast to Conversion Disorder), symptom relief is not often obtained by suggestion or hypnosis.

 All four suspicious elements exist in the instant case. Strong suspicion is particularly generated by the sharp difference between what, on the one hand, the defendant presented to the experts examining him and his actions in court -- a near catatonic or aphasic state -- and, on the other hand, his capable actions and reactions at other times, including his long history of antisocial behaviors.

 Experts for both sides conducted or relied upon the appropriate brain scans, psychological tests, and interviews of defendant. See, e.g., Richard Rogers Structured Interviews and Dissimulation, in Clinical Assessment of Malingering and Deception, 301-27 (Richard Rogers, ed., 2d ed. 1997). The experts for the government were, however, more persuasive in their analysis of the vast database. As demonstrated by Jonathan D. Brodie, Ph.D., M.D., Professor of Psychiatry at New York University School of Medicine, Department of Psychiatry, the brain scans, while properly administered, were of limited utility, were inconsistent with other information, and were unpersuasive in quantifying the degree, if any, of dementia. The psychological tests were appropriately administered from an academic point of view. Nevertheless, their interpretation by the defense experts was demonstrated to be inadequate and misleading, when combined with all the other evidence, and persuasively interpreted by Robert Asarnow, Ph.D., Della Martin Professor of Psychiatry and Behavioral Science and Professor of Psychology at the University of California at Los Angeles. The evaluations of interviews by the various experts were inconsistent primarily because of their differing hypotheses about the degree and periods of defendant's feigning.

 As in the resolution of many scientific issues, judgment is required. Mechanical or quantitative tests or litmus-type criteria are not decisive. There are few absolutes when we are required to peer into the minds of strangers and make critical decisions based upon what we see. Without denigrating in any way the bona fides of the experts for the defendant, the clinical skills and analysis of the experts who testified for the government, as well as the totality of the sometimes conflicting evidence in this perplexing case, leads this sentencing court to conclude that defendant is competent to be sentenced.

 Defendant has been consistently feigning insanity for many years and still is doing so in a shrewd attempt to avoid punishment for his crimes. While the court assumes, hypothetically, that defendant has a vascular lesion or lesions in his brain with some degree of dementia, malingering--or in lay terms, feigning--remains the chief reason for the symptoms he displays. The dementia is, at most, of minor significance. There is no other disease or defect, independently or in combination with the assumed vascular dementia, that results in this defendant's incompetence to be sentenced.

 Defendant is now, and will for the foreseeable future remain, competent to fully participate in sentencing hearings; to consult with and assist his attorneys before and at sentencing; to participate in the sentencing allocution; and to understand and appreciate why and how he is being punished for his crimes. His memory, ability to reason concretely and abstractly, to communicate with the court and others, including his counsel, and to meet the legal standard for competency at sentencing have been established by a preponderance of the evidence.

 Should he be incarcerated, defendant is competent to serve a prison sentence -- at which time he will be afforded fully adequate medical treatment as needed. In view of the medical and other facilities available in federal prisons and related institutions, any physical or mental infirmities of defendant are not such as will result in imprisonment being cruel and unusual.

 IV. Evidence and Findings of Fact

 A. Exhibits

 Introduced or referenced by judicial notice were the full medical and other institutional records of the Federal Correctional Institution at Butner, North Carolina, to which the defendant had been sent for evaluation after the jury verdict; medical and other records of the Westchester County Medical Center where defendant has been incarcerated awaiting sentence since the Butner evaluation; earlier extensive medical records of defendant for over three decades; transcripts of defendant's trial, and evidentiary hearings; and this court's decisions in the case; various miscellaneous records; and the reports of the experts who testified as well as their testing and other data.

In accordance with your Court Orders dated July 26, 1997, and August 20, 1997 a psychiatric evaluation of Mr. Gigante has been completed.
It is our opinion that Mr. Gigante is suffering [from] a mental disease or defect of which he is in need of custody for care and treatment. He currently has significant medical conditions that also require close monitoring. For these reasons, if incarcerated, we recommend placement in a Federal Medical Center that can manage both his psychiatric and medical needs. I have enclosed the report prepared by my staff reflecting these opinions.

 More detailed reports of the experts who conducted the Butner evaluation including a suggestion of malingering are analyzed in part IVD, infra.

 That the conclusions of the court in this perplexing case can not be established with a degree of probability approaching proof beyond a reasonable doubt should not be surprising. As the Second Edition of Clinical Assessment of Malingering and Deception (Richard Rogers, ed., 2d ed. 1997) points out: "the last 9 years [since the first edition] have chronicled an increased growth in the malingering and deception literature with several hundred new research articles." Id. at ix. While psychological testing has improved, there is, as of now, no reliable judicial or medical test or combination of tests that can, in a case such as the instant one, rule out malingering without full consideration of all the relevant history and the exercise of judgment.

 Each of the experts that testified in this case on the issue of competence for sentencing have distinguished positions in their respective fields and have published widely in peer reviewed scientific journals. They were (in order of appearance):

  B. Defense Experts

  1. William H. Reid, M.D.

  Doctor Reid is a noted practicing clinical and forensic psychiatrist, with appointments to a number of medical schools as a professor of psychiatry. He is certified by the American Board of Psychiatry and Neurology in general psychiatry, with special qualification in forensic psychiatry. He interviewed defendant five times and spoke to a number of defendant's relatives and to persons involved in the treatment or diagnosis of defendant. In addition, as did all of the experts who testified, doctor Reid reviewed various medical, psychological, psychiatric, and legal records in preparing his opinion. His conclusions, "to a reasonable degree of medical certainty," were that the defendant was incompetent due to mental illness and that he was not feigning. The specifics of doctor Reid's conclusions are as follows:

1. Vincent Gigante is unable, for reasons of mental disorder or defect, to understand the nature of the charges against him, the defenses available to him, or the process of adjudicating his innocence or guilt, in any way meaningful to his criminal defense.
2. Vincent Gigante is unable, for reasons of mental disorder or defect, to cooperate in his defense or work with his attorneys in any way meaningful to his criminal defense.
3. Vincent Gigante is unable, for reasons of mental disorder or defect, to express accurately or meaningfully to a court his wishes, concerns, explanations, or mitigating factors regarding potential sentencing options.
4. [These] findings are consistent with those of virtually all of the psychiatrist[s], psychologists, and neuropsychologists who have seen and evaluated Mr. Gigante during the past several years (with the exception of Dr. Barboriak and his psychologist, Dr. Hazelrigg), for the defense, the Court, and direct clinical treatment, and like them, strongly suggest chronic illness and incapacity lasting several years.
5. The clinical conditions responsible for the above opinions, described further in 6(a) and 6(b), below, are very unlikely to remit significantly in the future, and the dementia (see below) will probably worsen. Thus the inabilities or incapacities outlined will almost certainly continue for the foreseeable future.
6. Although the clinical fact of Mr. Gigante's incapacity is clear . . . , its source is less clear and probably multifaceted. Those psychiatrists, psychologists, neuropsychiatrists, and neuropsychologists who have evaluated him over the past several years, including those retained by the Court itself, have been generally consistent in their overall findings. My diagnostic impressions agree with many of theirs, and include the following:
a) Dementia, probably due to multiple causes, which may include (in rough order of probability and importance) adverse effects of cardiac/cardiovascular surgery, multi-infarct vascular disease, chronic (past) medication effects, slowly-progressing Alzheimer's disease, and/or old head trauma (from boxing). I do not believe that Mr. Gigante's overall level of dementia can reasonably be attributed to the type or dose of his current medications (e.g., lorazepam [Ativan]).
The dementia is chronic, not acute. Its specific cause(s) is (are) less important to the issue of competence than the fact of the dementia itself. Some causes may have developed suddenly (e.g., from heart surgery), others over a long time. None of the likely causes will change in the future, with or without treatment, and thus the dementia will either continue at about its present level or, more likely, worsen over time.
b) Psychosis, chronic, paranoid, specific source unclear. The symptoms may have presented in various ways through the years, and I have no reason to question the diagnoses made by Mr. Gigante's treating psychiatrist(s) and other qualified clinicians over the past decade. His current condition is best described as an old, fairly stable psychosis, perhaps a schizophrenia, in which he has sort of "adapted" to the unusual mental events and feelings to which he is prone (e.g., auditory hallucinations). His lifestyle, behavior, and psychosocial history suggest a schizophrenic or schizophreniform disorder which is episodic, with interepisode residual symptoms. Chronic psychosis "not otherwise specified" is also a reasonable diagnosis for this portion of Mr. Gigante's condition.
The specific diagnosis or cause of the psychosis is less important than the fact of his chronic social and emotional dysfunction. It is likely that Mr. Gigante's dementia is a greater factor in his current incapacity than is his psychosis.
7. Mr. Gigante does not meet accepted diagnostic criteria for "antisocial personality" at this time, nor is there credible evidence that he has met them within the recent past. Whether or not he met those criteria many years ago is not clear to me.
8. I find very little indication that Mr. Gigante is feigning psychiatric symptoms or deficits for personal gain (malingering), or that he has done so within the past several years. Whatever self-serving or legally-defensive behavior he may engage in at present appears to arise much more from habit or reflex than from any real appreciation of his legal situation, or any ability to react competently to it.
9. With regard to the report from Drs. Barboriak and Hazelrigg, of the Federal Correctional Institution at Butner, NC: Most of their findings are consistent with my opinions, above. Some of their conclusions are, in my opinion, incorrect. For example, the descriptions that gave rise to the comment that Mr. Gigante appeared to behave or communicate normally at times are commonly seen in persons with moderate dementia, and do not represent any complete or continuous understanding of matters as complex or specific as the elements of trial or sentencing. Rather, they suggest behaviors commonly seen in moderately demented individuals such as remnants of social ability which can cover embarrassing or frightening memory deficits; selective memory, in which the evaluee chooses those things he can remember at the time and talks about them; mild confabulation, in which the evaluee substitutes logical-sounding responses or pseudo-memories for items he cannot recall; fluctuating levels of effort at tests or questions; and levels of dementia which fluctuate with time of day, surroundings, anxiety, perceived threat, level of consciousness, and the like.

  (Def. Exh. N at 3-4, emphasis in original.)

  In his testimony, Doctor Reid stated his belief that any malingering by defendant ended by 1996 at the latest, but he could not tell exactly when it ceased because "the dementia in particular becomes more important" over time. (Tr. at 81, 82, 169.) He noted "overlapping symptoms" of "schizophrenia," "schizoaffective disease," "psychosis unspecified," "major mood syndrome within a psychosis," "some depression," "alzheimer's dementia," and "vascular dementia," (Tr. at 87-89), as well as paranoia. (Tr. at 100.) Recent improvements shown in the defendant's I.Q. and reactions to those around him were attributed to the fact that "dementia is variable from time-to-time" and to variations in administration of tests. (Tr. at 92.) Defendant's memory of names and the like also varied. (Tr. at 96-98.) In reaching his conclusions, the doctor relied in part on auditory and visual hallucinations reported by the defendant. (Tr. at 101-02.)

  At one point in his examination defendant led the doctor into the bathroom to warn the doctor that they were being surveilled by a TV camera. (Tr. at 104-05.) Defendant, the doctor reported, "keeps saying he wants to do right things. He doesn't want wrong things done to him." (Tr. at 106.) He "adapts to situations [such as at Butner] maybe a little better than some folks give him credit for," reported doctor Reid. (Tr. at 107.) Some of his improvement and some of his hallucinations since the trial may have been, according to the doctor, caused by reductions in prescribed drugs while he was at the Butner facility. (Tr. at 108.)

  Defendant was able to converse with doctor Reid in sentences of appropriate length and form. "He was pretty comfortable with me, wanting to make the conversation, enjoying my company." (Tr. 109.) He was aware of which members of his family were coming and when, of the nurses and their functions, and the need to take his medication. (Tr. at 110.) He also recalled the medications his treating physician had prescribed over many years. (Tr. at 166.) The fact that from time-to-time, even today, defendant appears lucid was characterized by doctor Reid as disease "variability." (Tr. at 169-74.)

  Doctor Reid admitted that some of defendant's actions are those "one may observe in a person malingering." (Tr. at 175-76.) For instance, he reported that defendant understood the importance of the judge in his case, (Tr. at 176-77), and knew he had been on trial. (Tr. at 178.) He refused to take some medication unless ordered to do so by the "judge," (Tr. at 181), and was aware that the court had ordered that he not be handcuffed when being transported to Butner. (Tr. at 179-80.)

  He thought many of the defendant's responses were "superficial," without any "appreciation of his situation." (Tr. at 186-188.) In summary, doctor Reid opined defendant's "level of dementia is of the moderate degree as opposed to either mild or severe." (Tr. at 191.) At the present time, according to doctor Reid, defendant could not aid in his own defense. (Tr. at 193.)

  2. Monte S. Buchsbaum, M.D.

  Doctor Buchsbaum is a noted professor of psychiatry at Mt. Sinai School of Medicine, New York, and Director of that institution's Neuroscience PET [position emission tomography] laboratory. His studies were previously declared by this court to be inadequate to support his opinion at hearings to determine defendant's competence to stand trial, because of the lack of a sufficient scientific database to support the conclusions he drew from defendant's PET scan. His conclusion "that the abnormal metabolic pattern seen, which is typical of patients with dementia is not the product of psychopharmacological drug action," (Def. Exh. J at 3), was not persuasive in the absence of further scientific studies. See United States v. Gigante, F. Supp. , 1997 U.S. Dist. LEXIS 18635, 1997 WL 677083, at *4 ("Defense experts' findings were, in any event, dubious, based upon speculative scientific theories lacking full, development, research, and support.").

  Even as supported by his report of November 16, 1997, relying on additional studies of doctor van Gorp and others, doctor Buchsbaum's opinion is not persuasive. His diagnosis was that "PET scan abnormalities indicated possible dementia." (Def. Exh. J at 2.) He also testified that defendant's electroencephalogram is "consistent with a person suffering from dementia." (Tr. at 121.) At most, the work of doctor Buchsbaum supports the conclusion that there is some damage to defendant's brain, resulting in some one or the other form of dementia. (See, e.g., Tr. at 126 stating it is "impossible based upon these tests to clearly differentiate Alzheimer's Disease from vascular dementia and other perhaps rare causes.") The critical issue of the balance between malingering and dementia in explaining defendant's actions, is not illumined by doctor Buchsbaum's work.

  In answer to the court's questions, doctor Buchsbaum agreed on the need for more study. The extensive exchange went as follows:

COURT: I have a few questions, Doctor, if you don't mind. You are aware that there was a trial in this courtroom for about a month in July of this year?
WITNESS: I did follow the newspaper articles about it.
COURT: Each morning the defendant was wheeled in by his brother. The defendant sat throughout the trial without evidencing any indication of the fact that he was aware that he was in a courtroom or on trial or that anybody was around him. He didn't respond to his brother's kiss each morning. His foot, one or the other, quivered from time to time. Occasionally his lips moved without apparently saying anything that was understandable. And except for what might have been a glare at the jury foreman when the verdict was brought in, he evidenced no reaction at all to anything that was going on around him.
Subsequently he was interviewed at Butner and he was also interviewed by a number of other witnesses, including one that testified this morning. I think you heard part of his testimony. At those interviews, if we are to credit the [interviewers], he responded to questions, not as effectively as perhaps a normal person might, he showed a certain degree of charm, he had some memory, he was capable of speaking in sentences of some complexity, he was aware of what a camera might do . . . revealing what was being said and done and the like.
Does that suggest to you a possibility of some malingering at the trial?
WITNESS: Well, it is a little hard for me to see because I wasn't here at the trial and didn't observe --
COURT: I am telling you what I observed.
He was what I think could properly be described as in a catatonic state, never uttering a word, never responding to anything that happened, except possibly for the last moment.
WITNESS: Well, I would say two things about it. One of the aspects of Alzheimer's disease which is characteristic is . . . so-called good days and bad days, that there is quite a lot of fluctuation in the cognitive state.
COURT: I understand. This was day after day after day for [a] month.
WITNESS: And there is also a certain dependence on the social setting, so that patients may, in one particular social setting with their spouse or their family, be a particular way, very different with a doctor or out in the community.
So I have seen quite, among the many patients that I have tested on . . . PET studies, quite a range of social skills and quite a disassociation between the social skills and cognitive activity. I think that's really one of the hallmarks of dementia illnesses, that you may see some skills preserved and some really almost completely gone.
So, here is a woman who is disoriented as to where she is, what she is doing, neatly dressed, all the social graces intact, and yet really no cognitive ability at all.
We had another patient who was dining out at a restaurant at a table next to us. Couple came over, said hello. They were very polite. Talked about the Thai restaurant food, but I happen to know from testing the patient that this patient had very severe cognitive disabilities, yet he was very neatly dressed and very sociable.
On the other hand, we've had patients who had done quite well on memory tests or relatively well but socially have been absolutely impossible, that is, abusive, swearing, disorganized, don't remember why they are there, screaming in the PET scan.
So we've had quite a range. You can see a disassociation between the social aspects and the cognitive aspects, and I would say it is not completely unusual.
So, it isn't unique to this particular person that he would be stiff and rigid and not responding in a complex situation and on a one-on-one relationship with a neurologist or doctor be more responsive.
COURT: So there is nothing in this, apparent to the layman, discrepancy that would suggest to you any malingering?
WITNESS: Not without studying it in more detail.
COURT: If there is a patient who was normal, however you want to define normality, who malingered over a long period in order to avoid punishment, trials, and if that patient then became somewhat diseased, in whatever disease or combination of diseases, would it be possible, almost by habit or by a continuing desire, to repeat the malingering to suggest more of a disability than the disease warranted?
WITNESS: I certainly couldn't rule that out, and then what you would see is incompetent malingering.
So, this would be a person who would do a poor job of malingering because they wouldn't be able to sustain a sort of whatever their idea of their illness was, and they would be trapped on various kind[s] of neurological psychological examination.
COURT: But it would be possible, would it not, for a person with a disease yet not sufficiently diseased to be incompetent within a legal definition, to superimpose upon that disease a malingering that would make it appear as if the person were incompetent?
WITNESS: I think you are asking me if a person were for years pretending to have a mental disease and then developed Alzheimer's disease?
COURT: A minimum form of it.
WITNESS: A minimal form.
COURT: Which would not in itself be enough to define as incompetent for legal purposes. Could he conceivably superimpose the malingering on that residual disease to make it appear as if he were incompetent to the observer?
WITNESS: He would do a bad job of it so that he would lose whatever ability he had to convince people earlier that he had a psychiatric disease, and he would be doing an incompetent job.
COURT: Well, Alzheimer's can be of varying intensities, can't it? Here the stages are not such to make a person completely incompetent. Even our president may have had early stages while being competent, I suppose, in the legal and presidential sense.
WITNESS: So this is certainly in the early stages of it. You would see some sort of fraying of the previous pattern, so that doctors would be unremembered. The behavior would be erratic from day to day because the dementia interfered with whatever was being put on. So I couldn't rule that out.
I am trying to think of some of the neuropsychological tests. Behavior might even be interpreted that way so that occasionally you remember to malinger but do a bad job of it.
So that you would get zero on various easy items or perform poorly in other ways that would seem, transparently, to be malingering but other things it would be clear evidence that you weren't, so you would be a demented malingerer.
COURT: Slightly demented?
WITNESS: Slightly demented malinger.
COURT: Effective malinger?
WITNESS: So you ask, what is your name? I don't know who is president of the United States. Oh, I better get some of these questions right. I'll give the answer --
COURT: But the disease might show up on these tests even on a non-malinger with that intensity of disease, and if a non-malingerer had that intensity of disease, he might show up on your tests exactly as Mr. Gigante did? Isn't that possible?
COURT: Because you haven't quantified the degree of deviation shown by your PET scan yet by correlating it with the degree of Alzheimer's disease and the stages through autopsies; isn't that so?
WITNESS: We haven't done that with autopsies, but we have done [it] in a cross-sectional study where we have PET scans with people in different states of Alzheimer's disease. The individuals who had the greatest decrease in glucose metabolism in the temporal lobes were those who scored the worst on memory tests, who scored the less -- the worst on tests of orientation, things like asking people their name, who is president, what year it is, and so forth.
COURT: What state of Alzheimer's, if it was Alzheimer's, based on the PET scan, would you place the defendant in?
WITNESS: I would have to say early to medium course. So this would not be the end stages of Alzheimer's disease where people are having trouble dressing themselves or other things. This would be in the earlier stage.
COURT: Where a person could still reason to some extent and might even be able to continue with normal activities to some limited extent?

  (Tr. at 146-49, 151-54; see also 234-37, 237 (testimony of doctor Klein stating, "it is quite a troubling case"); 237-42.)

  The court found this witness for the defendant as well as the other defense experts, insufficiently helpful in accounting for the striking differences between defendant's activities observed by laypersons and those observed for by the experts. In this respect, the experts who were called by the government constructed a more cohesive narrative and diagnosis consistent with all of the evidence.

  3. Donald F. Klein, M.D.

  Doctor Klein is a noted psychopharmacologist. He serves at the New York State Psychiatric Institute of the College of Physicians and Surgeons, Columbia University, and at other institutions. He is a diplomate of the American Board of Psychiatry and Neurology in Psychology and a diplomate of the American Board of Clinical Pharmacology. He interviewed the defendant at the Westchester County Medical Center and also reviewed relevant records.

  Somewhat contrary to the impressions of some of the other defense experts, doctor Klein saw a rather pathetic and uncomprehending individual. His report states:

On examination Mr. Gigante was a thin, bearded, tremulous man who looked substantially older than his given age of 69.
In terms of the patient's attitude and speech, the patient appeared unkempt, thin and tremulous. He sat jiggling his left leg, and spoke in halting sentences. He does not face the interviewer except occasionally. Most of the replies were in the form of fragmentary sentences such as "I don't bother nobody". His voice was high pitched and somewhat cracked. His hands showed complete flattening of both the thenar and hypothenar eminences. The patient's affect was anxious, perplexed, confused. He looked around him vigilantly. When queried whether he was depressed he said "Sometimes" but could not elaborate.
He did state that on the one hand, "I don't see my mother and family" and on the other hand "They come every night and stay an hour". He complained loudly of cold.
The patient's thought processes and content were meager. He would say cliched phrases such as "It's raining but the sun is coming out". At times his replies were to the point and at times not at all. He stated that "God says nice things-good things, and tells me everything". This was repeated several times in a perseverative fashion. When an officer came into the room, he asked whether he was a doctor. When I pointed out that he was wearing a badge, he then recognized him as "a cop".
The patient showed impulsive tendencies to respond but frequently misunderstood the questions. With regard to sensorium and intelligence, he was disoriented with regard to time and place. He identified where he was as a jail, but was not sure whether the year was 1996 or 1997. He believed that it was Winter. He was repeatedly told my name but could never remember it. After repeated reminders, he was able to state that I was a doctor. The patient's reactions to the interview were cooperative within limitations of his intellect.
When queried about what medications he was taking, he could not remember. At times he looked suddenly frightened, looking to the side. He continually was wringing his hands while complaining about the cold. Repetitious phrases were "You're a nice man, you don't bother nobody" and "I ain't sick no more". The patient evidenced no nystagmus on examination, but there was a suspicion of exophthalmos and lidlag.
Attempts to elicit history from the patient were unavailing. Attempts to engage the patient in calculation and word manipulation were unavailing.

  (Def. Exh. H at.2; see also Tr. at 208-11.)

  Doctor Klein found no basis for concluding that the drugs administered to defendant caused his cognitive or other problems, which he considered permanent. His diagnosis was:

290.42 Vascular Dementia with Delusions. This is supported both by the mental status and the reported brain examinations cited in the Butner report.
I do not believe that the current moderate dosage of lorazepam, or past medication, is responsible for the profound degree of cognitive defect and amnesia shown by this patient. The only definitive proof would be to wean the patient off the medication at the rate of .5 mg daily and then to re-examine him both from the point of view of mental status and brain scan. It is my belief that the patient's mental status will not improve and that the findings of the various brain evaluations will not change.

  (Def. Exh. H at 2-3; see also, e.g., Tr. at 211, 215-21.) Doctor Klein was "tilted . . . toward the idea of a vascular dementia," rather than Alzheimer's disease. (Tr. at 222.) He "dismissed" malingering as an explanation. (Tr. at 225.)

  4. Norman G. Gutheil, M.D.

  Doctor Gutheil is a noted practicing psychiatrist and forensic psychiatrist. He is a professor of psychiatry and co-director of the Law and Psychiatry Resource Health Center at Harvard University. His conclusion is that the defendant is not competent to be sentenced. In summary, his report states:

Based on my review of the . . . materials and my own training and experience, it is my professional opinion to a reasonable degree of medical certainty that 1) the current clinical picture of Mr. Vincent Gigante is most consistent with an organic condition like a dementia, which substantially impairs his ability to appreciate the meaning and nature of his sentencing; 2) the possibility of malingering regarding his current condition, as opposed to his previous condition(s), is not supported by a majority of the clinical and test evidence in the database . . . ; 3) it appears uncontested that Mr. Gigante suffers from a number of very serious medical conditions, and is the subject of treatment regimens, that may have an impact on his competence for sentencing.

  (Def. Exh. P at 2, emphasis in original.)

  Doctor Gutheil was impressed by the "strong case against malingering" suggested by the tests administered by doctor van Gorp, another defense expert. (Def. Exh. P at 3; Tr. at 260-62.) He also found other reports and data, as well as his own interview with the defendant, consistent with his diagnosis of lack of competency based upon dementia and other deficits. (Def. Exh. P at 3-6.)

  "What is called loosely vascular dementia which refers to a brain injury resulting from impairment of the circulation to parts of the brain," renders defendant, according to doctor Gutheil, incapable of understanding the sentencing proceedings, of assisting his attorneys, or of making "a presentation to the court." (Tr. at 256; see also, e.g., Tr. at 308 ("you can call it multiple embolic, multiple infarcts, or vascular dementia" they are "all the same thing").) Medication or withdrawal from medication did not significantly affect defendant's condition in doctor Gutheil's opinion. (Tr at 259-60.) Defendant's responses were concrete and "marked mostly by stereotyped answers and what's called perseveration which means the sort of meaningless and rote repetition of some phrase or cliche or statement of that sort." (Tr. at 275-76.) Significant impairment of memory and inability to think abstractly were also noted by doctor Gutheil. (Tr. at 270-72.)

  5. Stanley Portnow, M.D.

  Doctor Portnow is a noted diplomate and examiner of the American Board of Psychiatry and Psychoanalysis and of the American Board of Forensic Psychiatry. He is clinical professor of psychiatry at New York University. He examined the defendant at the Westchester County Medical Center and studied the relevant documents. He had also interviewed the defendant in the early 1990's when his diagnosis was "Schizoaffective Disorder and Organic Mental Disorder." (Def. Exh. L at 3.) This "is the same today as dementia," because of terminology changes. (Tr. at 313; see also Tr. at 314-17 for other terminological changes equating schizoaffective disorders with organic brain disorders.)

  He found the defendant to be a nonmalingerer, incompetent to be sentenced. Doctor Portnow's report states in part:

With the passage of years the worsening of his organic mental syndrome became even more apparent than would otherwise have been anticipated due to the ravages of Mr. Gigante's cardiovascular problems and surgeries. The obvious thinking disorder has been all but masked by the enormous proliferation of brain dysfunction as demonstrated by neuropsychological testing and PET scans.
The issue of malingering needs to be addressed again. Since practically the beginning of this case the government has said that Mr. Gigante is malingering his symptomatology. Notwithstanding the overwhelming weight of evidence against such a proposition, to my knowledge as of this date, no prosecution witness has come forth and stated with a reasonable degree of medical certainty that Mr. Gigante is in fact malingering. It is my professional opinion within a reasonable degree of medical certainty that Mr. Gigante is not malingering his psychiatric symptomatology.
The validity of the PET scans and its associated cognitive impairment has been called into question because of Mr. Gigante's various medications. I consider it highly unlikely that Mr. Gigante's present dementia induced cognitive deficits will be corrected or significantly improved by the gradual withdrawal of medication. If this is done he may actually develop more ...

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