The opinion of the court was delivered by: Orlofsky, District Judge
This case presents the novel and unsettled question of what legal standard a District Court must apply under 18 U.S.C. § 4244 *fn1 to determine whether a convicted person is competent to be sentenced. For the reasons set forth below, I hold that the Due Process Clause of the Fifth Amendment requires that a District Court apply the same legal standard in determining whether a convicted person is competent to be sentenced as the standard which is applied in determining whether a defendant is competent to stand trial pursuant to 18 U.S.C. § 4241. Specifically, in determining whether a convicted defendant is competent to be sentenced pursuant to 18 U.S.C. § 4244, a District Court must decide whether the defendant has sufficient ability to consult with his lawyer with a reasonable degree of rational understanding, and has a rational, as well as a factual understanding of the proceedings against him or her.
On March 7, 1997, Guido Sanchez pled guilty to one count of dealing in counterfeit United States obligations in violation of 18 U.S.C. § 473. On July 8, 1997, Sanchez moved to withdraw his guilty plea pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure. After taking testimony, this Court denied Sanchez's motion to withdraw his guilty plea on August 26, 1998. See United States v. Sanchez, Crim. No. 96-646 (SMO), slip op., (D.N.J. Aug. 26, 1998) at 24. Thereafter, Sanchez moved for reconsideration and for certification of an interlocutory appeal. The Court denied both motions. See United States v. Sanchez, Crim. No. 96-646 (SMO), slip op., (D.N.J. Oct. 23, 1998) at 7, 23. Sentencing was scheduled for November 20, 1998. On November 19, 1998, on the eve of his sentencing, Mr. Espinosa, counsel for Sanchez, informed the Court that Sanchez was suffering from suicidal ideation, and had been committed to the psychiatric unit at Cabrini Medical Center, located in New York City.
On December 10, 1998, pursuant to 18 U.S.C. §§ 4244, 4247, the Court ordered Sanchez to undergo a psychiatric/psychological evaluation. After receiving the report of the Court appointed psychologist, and the reports of Sanchez's treating psychiatrists, the Court conducted a competency hearing on March 12, 1999. Following the hearing, the parties filed supplemental briefs.
For the reasons that follow, I find, by a preponderance of the evidence, that Sanchez is presently suffering from a mental disease or defect and that he should, in lieu of being sentenced to imprisonment, be committed to a suitable facility for care or treatment. Accordingly, the Court shall commit Sanchez to the custody of the Attorney General for hospitalization in a suitable facility for care or treatment. In addition, in accordance with 18 U.S.C. §§ 473, 4244(d), I shall provisionally sentence Sanchez to commitment for a period of ten years, or until such time as the director of the facility in which Sanchez is hospitalized determines that Sanchez is recovered from his mental disease and is competent to be sentenced, see 18 U.S.C. § 4244(e), or until such time as this Court grants a motion by Sanchez for an order directing his discharge from hospitalization. See 18 U.S.C. § 4247(h). *fn2 I. BACKGROUND
A. Factual and Procedural History
On October 9, 1996, a criminal complaint was filed in this Court charging Defendant, Guido Sanchez ("Sanchez"), with dealing in counterfeit United States obligations in violation of 18 U.S.C. § 473. See Complaint (dated Oct. 9, 1996). *fn3 On October 10, 1996, Sanchez was arrested and later released on bail. On October 21, 1996, a grand jury returned a one count indictment charging Sanchez with a violation of 18 U.S.C. § 473. See Indictment (dated Oct. 21, 1996). Specifically, Sanchez was indicted for selling or attempting to sell $100,000 in counterfeit $100 Federal Reserve notes to a confidential informant working on behalf of the Government. See Presentence Investigation Report ("PSI") ¶ 7. After his arrest and release on bail, Sanchez pled not guilty at an arraignment on November 8, 1996, before the Honorable Joel B. Rosen, United States Magistrate Judge. See Transcript (dated November 8, 1996). At the time of the arraignment, Sanchez was represented by Samuel R. DeLuca, Esq. ("DeLuca") of the law firm of DeLuca & Taite. See United States v. Sanchez, Crim. No. 96-646 (SMO), slip op, at 4-5 (D.N.J. Aug. 26, 1998) (hereinafter "Opinion of Aug. 26, 1998").
On March 7, 1997, Sanchez retracted his plea of not guilty and, after an extended colloquy with the Court, entered a plea of guilty pursuant to a plea agreement with the Government. See Plea Agreement (dated Dec. 28, 1996; executed Mar. 6, 1997).
On June 4, 1997, nearly three months after pleading guilty, Tomas Espinosa, Esq., who had been newly retained as counsel for Sanchez, informed the Court by letter that Sanchez would be moving to withdraw his guilty plea. See Letter to the Court (dated June 4, 1997). On July 8, 1997, Sanchez, through his new attorney, Mr. Espinosa, formally moved to withdraw the plea of guilty. See Opinion of Aug. 26, 1998). After initial briefing and the filing of several certifications, including one from Sanchez himself, the Court conducted a two-day evidentiary hearing on November 14 and 18, 1997. See id.
In support of his motion to withdraw his guilty plea, Sanchez asserted the following two arguments based on ineffective assistance of counsel: (1) that Sanchez's former counsel, Mr. DeLuca, failed to investigate or advise Sanchez of the potential affirmative defenses of coercion and entrapment; and (2) that Mr. DeLuca inappropriately promised Sanchez that he would receive a short probationary sentence if he pleaded guilty, and a ten year sentence if he did not so plead. See United States v. Sanchez, Crim. No. 96-646 (SMO), slip op, at 4-5 (D.N.J. Oct. 23, 1998) (hereinafter "Opinion of Oct. 23, 1998"). On August 26, 1998, the Court filed an opinion and order denying Sanchez's motion to withdraw his plea of guilty. See Opinion of Aug. 26, 1998, at 24. Specifically, with regard to the defenses of coercion and entrapment, this Court found:
I find that regardless of whether [former counsel] investigated th[e] affirmative defense[s] [of entrapment and coercion], there is no likelihood that discovery of the "supporting" evidence would have led [former counsel] to change his recommendation regarding the plea of guilty, no likelihood that Sanchez would have gone to trial based on the entrapment [and coercion] theor[ies], and finally, no likelihood that the defense[s] would have succeeded at trial. Th[ese] theor[ies] provide no "fair and just reason" for withdrawal of the plea. See id. at 14, 17-18.
On September 28, 1998, Sanchez filed a motion for leave to file an interlocutory appeal. *fn4 See Notice of Motion for Leave to File an Interlocutory Appeal (filed Sept. 28. 1998). On October 7, 1998, after considering Sanchez's moving papers and the Government's October 6, 1998 letter-brief in opposition, I denied Sanchez's motion for leave to file an interlocutory appeal for the following reason:
The Court having found that a grant of leave to file an interlocutory appeal would be improper at this time, see United States v. Gottlieb, 817 F.2d 475, 476 (8th Cir. 1987) (stating that the proper time to challenge an order denying a motion to withdraw a plea of guilty is after sentencing when the decision is final); see also Midland Asphalt Corp. v. United States, 489 U.S. 794, 798- 99 (1989) (stating that, in criminal cases, 28 U.S.C. § 1291 limits the jurisdiction of courts of appeals to final decisions of the district court "after conviction and imposition of sentence"); Abney v. United States, 431 U.S. 651 (1977) (noting the primacy of the final judgment rule governing appeals in criminal cases); . . . Defendant's motion for leave to file an interlocutory appeal is hereby DENIED[.]
See Amended Order of the Court (filed Oct. 7, 1998).
On October 13, 1998, Sanchez filed a notice of motion for reargument of the Court's October 7, 1998, order denying his motion for leave to file an interlocutory appeal from the Court's opinion and order of August 26, 1998, denying his motion for withdrawal of his guilty plea. See Notice of Motion for Reconsideration (filed Oct. 13, 1998). After a thorough and careful review of the record, my prior orders, and the submissions of Sanchez and the Government, I denied Sanchez's motion for reargument, concluding that I had not overlooked any matter or controlling decision. See Opinion of Oct. 23, 1998.
On October 8, 1998, the United States Probation Office ("Probation Office") prepared a Presentence Investigation Report. See PSI (prepared Oct. 8, 1998, revised Oct. 23, 1998). Applying federal sentencing guideline § 2B5.1(a), Probation computed the base offense level to be nine. See PSI ¶ 18. "Because [Sanchez's] offense involved $100,000.00 worth of counterfeit currency, the offense level [was] increased six levels, pursuant to [United States Sentencing Guideline] § 2B5.1(b)(1), *fn5 which references the table at [USSG] § 2F1.1(b)(1)(G)." See PSI ¶ 19. No other adjustments were made to the offense level, resulting in a total offense level of 15. See id. ¶ 28. The Probation Officer computed Sanchez's criminal history category as "I." Id. ¶ 31.
By letter dated October 17, 1998, *fn6 Sanchez objected: (1) to the Probation Officer's recommendation that he be denied a two level reduction in his total offense level for acceptance of responsibility pursuant to USSG § 3E1.1, *fn7 and (2) to the Probation Officer's application of USSG § 2F1.1 in determining the total offense level. See Letter of Tomas Espinosa, Esq., to Susan M. Smalley, United States Probation Officer (dated Oct. 17, 1998). In addition to his objections to the total offense level calculation set forth in the PSI, Sanchez contended that he was entitled to a downward departure pursuant to USSG 5K2.0. See id.
On November 19, 1998, the day before Sanchez was scheduled to be sentenced, this Court filed an Opinion and Order overruling Sanchez's objections to the calculation of the total offense level, and denying his motion for a downward departure pursuant to USSG 5K2.0. See United States v. Sanchez, Criminal No. 96-646, unpublished slip op, at 4-5 (D.N.J. Nov. 19, 1998) (hereinafter "Opinion of Nov. 19, 1998"). In addition, I held:
I make the following additional findings as to the appropriate Guideline calculation: (1) that the total offense level under the applicable Guidelines is 15; (2) that the criminal history category is I; (3) that the appropriate range for custodial sentence, pursuant to the Sentencing Table of Chapter 5, Part A of the Guidelines, is 18 to 24 months; (4) that the appropriate range for supervised release, pursuant to USSG §§ 5D1.1-2, is 2 to 3 years; (5) that, pursuant to USSG § 5E1.2, the appropriate range for the imposition of a fine is between $4,000 and $40,000; and (6) that the special assessment, pursuant to USSG § 5E1.3 and 18 U.S.C. § 3013, is $100. See id. at 30.
On that same day, the Court received a letter from counsel for Sanchez, informing me that Sanchez had been "hospitalized in Cabrini's [sic] mental hospital in New York" because he had been entertaining suicidal ideations. See Letter to the Court from Tomas Espinosa, Esq. (dated Nov. 18, 1998). Mr. Espinosa further informed the Court:
I am alerting the Court to the possibility that the defendant may in all likelihood not appear on the sentencing date as a direct consequence of his condition and I want to avoid that he may be arrested and his bail forfeited without no [sic] fault by him. I do not know what is [sic] his prognosis nor the length of time that he will be confine [sic] to the care of the hospital . . . . From my conversation with Dr. [Nicholas] Marchese, ["a Psychiatrist who is the Director of Psychiatry at Saint Francis Community Health Center, in Jersey City[,] New Jersey,"] [G]uido Sanchez is a very sick man and the derangement he is experiencing is the direct consequence of having to go to jail for a crime he did not commit and this without the benefit of a trial of his peers. This is not a delay tactic (such a silly tactic would be ridiculous any way [sic] and counterproductive if it were used by any defendant). See id.
In addition, Mr. Espinosa submitted two letters to the Court from Dr. Carlo Filiaci, an attending physician at Cabrini Medical Center, certifying that Sanchez had been admitted to Cabrini Medical Center's psychiatric unit. See Letters to the Court from Dr. Carlo Filiaci (dated Nov. 17, 1998).
Enclosed with Mr. Espinosa's letter of November 18, 1998, was a copy of a psychiatric report prepared by Dr. Nicholas A. Marchese, M.D., a psychiatrist and former Director of Psychiatry for St. Francis Community Health Center, located in Jersey City, New Jersey. See Letter to the Court from Tomas Espinosa, Esq. (dated Nov. 18, 1998), Exh. A (Report of Dr. Nicholas A. Marchese, dated Nov. 13, 1998) (hereinafter, "Marchese Report"). In the report, Dr. Marchese diagnosed Sanchez as suffering from a "Major Depressive Disorder - Recurrent Type Accompanied by Anxiety." See Marchese Report at 3. Regarding Sanchez's mental status, Dr. Marchese reported:
[Sanchez's] mood was very depressed accompanied by a pervasive loss of interest in almost all activities except his thoughts of impending and overwhelming catastrophic doom and thoughts of annihilation. He also complained of appetite disturbances, sleep disturbances, nightmares, decreased energy, feelings of worthlessness, difficulties in concentration and thinking.
Thoughts of self destruction were also quite evident although he expressed no plans for doing anything at this time. . . . [S]low intellectual functioning and forgetfulness was [sic] quite evident. His anxieties were noted by . . . objective signs of restlessness, agitation, twitching, dilated pupils, dry mouth, and tremors of his hands and lips. See id. at 2.
Based on his observations, Dr. Marchese offered the following opinion:
[Sanchez] is presently very frightened and nervous. He is undergoing grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror and ordeal. His present ideations of self destruction should be immediately addressed and if necessary be hospitalized for treatment by a Psychiatrist. [Sanchez's] emotional and intellectual capacity is presently unable to confront the realities of his present predicament. See id. at 3.
Dr. Marchese further opined that "a prison sentence would produce severe psychological consequences in this person." See id.
After considering the psychiatric evaluations submitted by counsel for Sanchez, and receiving no opposition from the Government, on December 10, 1998, in accordance with 18 U.S.C. §§ 3552, 4244, 4247, this Court ordered Sanchez to "submit to a psychiatric/psychological examination, including an evaluation of his mental competency for further proceedings in this matter, to be conducted by a licensed or certified psychiatrist or clinical psychologist as required by 18 U.S.C. § 4247(b)[.]" See Order of the Court (filed Dec. 10, 1998). I further ordered that "upon completion of the examination, and submission of the examining physician's report, the Court shall schedule and hold a hearing . . . to determine whether [Sanchez] is suffering from a mental disease or defect for the treatment of which he is in need of . . . treatment in a suitable facility, pursuant to 18 U.S.C. §§ 4244, 4247, pending final sentence." Id.
On December 16, 1998, in accordance with the Court's December 10, 1998, Order, Dr. Konstantin Mouhtis, Ph.D., a licensed psychologist and Clinical Director of the Human Growth Center of New Jersey, located in Bloomfield, New Jersey, evaluated Sanchez. See Report of Dr. Konstatin Mouhtis (dated Dec. 21, 1998) (hereinafter, "Mouhtis Report"). Sanchez "was seen at pre-trial services, and his daughter and wife were with him." See id. at 1. After reporting that he observed symptoms similar to those reported by Dr. Marchese, Dr. Mouhtis opined:
It is clear that Mr. Sanchez is suffering from a single episode of major depression as a result of his upcoming sentencing. He does not have a previous psychiatric history, and has worked as a longshoreman for the past thirty years. Currently Mr. Sanchez is stabilized on medication [(Trazondone, Prozac and Ambien),] . . . however, I believe it is vital that he continue this medication and that he also receive psychotherapy after he is sentenced. It is my opinion that Mr. Sanchez can understand the charges he faces and is mentally able to go through any legal matter and assist in his own defense. See Mouhtis Report at 2.
Dr. Mouhtis did not administer any diagnostic tests.
B. Testimony Presented at the March 12, 1999, Competency Hearing
On March 12, 1998, the Court conducted a competency hearing pursuant to 18 U.S.C. §§ 4244, 4247. See Transcript (dated Mar. 12, 1999). The Court heard testimony from Yomayra Garcia, Sanchez's adult daughter, Dr. Marchese, and Dr. Mouhtis. See id.
Yomayra Garcia testified that in October, 1998, her father's mental condition deteriorated dramatically. See id. She testified that her father, who was employed as a longshoreman, was forced to stop working because his depressed and listless condition made him a safety hazard to his co-workers. See id. Ms. Garcia further testified that, about this time, he stopped bathing regularly, spent most of his days in bed lamenting his fate, and staring at the ceiling. According to Ms. Garcia, her father became increasingly suspicious of strangers and family members alike, often refusing to eat the same meals as his wife and children, hiding behind shuttered windows, and even boarding up the windows of his bedroom to keep the Government from "coming to get him or shooting him through the windows." See id.
In addition, Ms. Garcia testified that she was present at Dr. Mouhtis' examination of her father. See Transcript. She stated that she acted as an interpreter during Dr. Mouhtis' evaluation of Sanchez because: (1) Sanchez does not understand English; (2) Dr. Mouhtis does not speak Spanish; and (3) the Government failed to provide Dr. Mouhtis with an independent Spanish-language interpreter. See id. Ms. Garcia further testified that when she translated Dr. Mouhtis' questions into Spanish, her father had little or no reaction, and his answers, if any, were not responsive to the questions. See id. To facilitate the interview, Ms. Garcia answered Dr. Mouhtis' questions on behalf of her father, volunteering information about his mood, behavior and family and work history. See id. Ms. Garcia stated that, because of the language barrier, Dr. Mouhtis interacted almost exclusively with her, not Sanchez. See id.
At the conclusion of Ms. Garcia's testimony, defense counsel called Dr. Marchese to the stand. See Transcript. Dr. Marchese, who speaks Spanish, testified that he interviewed Sanchez directly for approximately one hour on five separate occasions between November, 1998, and March, 1999. See id. Although Dr. Marchese testified that Sanchez "appeared to understand [his questions,]" Dr. Marchese further testified:
[Sanchez] was under severe, severe pressure. . . . I had to ask him the question a number of times and he couldn't provide me with an exact answer, that's when I had to turn to his wife or daughter [for clarification]. Id.
In addition, Dr. Marchese stated that over time he observed a severe psychological deterioration in Sanchez. See id. On direct examination, Dr. Marchese testified
Q. [By Mr. Espinosa] . . . Can you express to the court what you mean by severe psychological deterioration?
A. Yes. Well, he was not functioning. He was not able to understand, he was not relevant, he certainly could not make any sense of what was going on. It was rather chaotic, his thinking was chaotic, there was no relevancy in his thinking or communication.
Q. Did [sic] you believe that Guido Sanchez can make a rational decision . . . about this whole proceeding here and assist me ...