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May 17, 1973


Huyett, District Judge.

The opinion of the court was delivered by: HUYETT

HUYETT, District Judge.

 The Court presently has before it a petition for determination of the mental competency of defendant, Michael J. Horowitz, to stand trial. Defendant is charged in a three-count indictment with violations of Int. Rev. Code of 1954, § 7206 *fn1" and 18 U.S.C. § 2. *fn2" The United States Attorney, on March 27, 1973 submitted a petition to determine competency as required by 18 U.S.C. § 4244. *fn3" The Court has since held two hearings at which the testimony of three psychiatrists and defendant's wife was taken.

 Defendant was indicted along with his former business partner, Irving L. Margolis. They are accused of wilfully and knowingly making and subscribing or aiding, abetting, assisting or causing the making and subscribing to false income tax returns for their business, Carlton Plastics, Inc., for the fiscal years ending in 1966, 1967 and 1968. *fn4" The alleged falsity involved overstating the purchases made and commissions paid during each of these years when they well knew that the amounts were less than they claimed.

 The evidence received at the first hearing indicated that defendant began to have psychiatric difficulties shortly after an automobile accident in the Fall of 1968. According to a letter of Dr. M. Lawrence Spoont, a psychiatrist who first saw defendant in September, 1969, the condition was a depressive reaction which had become progressively worse over the ensuing months and had incapacitated defendant. Defendant undertook "intensive psychotherapy" with Dr. Spoont from September 1969 to December 1969, when he went to Florida. Dr. Spoont saw him on several occasions thereafter, with the last visit on March 31, 1972.

 In November 1971, defendant and his wife moved to Palm Beach, Florida. Defendant went to see Dr. Jose Almeida on May 5, 1972. He continued to see Dr. Almeida for supportive therapy until February 1973 when he first visited Dr. Conrad. He has consulted with Dr. Conrad on four occasions, including once at the request of defendant's attorney for purposes of these proceedings. The last psychiatrist to see defendant prior to the first hearing was Dr. Thrasher who examined him at the request of the Government attorney, and whose conclusions were the basis of the Government's petition.

 The testimony of Doctors Thrasher and Conrad at the hearing on April 5, 1973 *fn5" was substantially the same. Dr. Thrasher testified that during their session together the defendant was "well dressed, very tense, very anxious, very impatient." He described Horowitz as "despondent, depressed," and said that "tears came to his eyes frequently and, on several occasions, would burst into sobs and weeping." During the interview Horowitz expressed bad feelings about himself -- feelings of worthlessness, ineptness, childishness, unworthiness and desire for self-destruction, which had once resulted in a suicide attempt. Defendant complained to the doctor that he could not make even the simplest decisions and that he was not worthy of employment. The doctor testified that during the interview the defendant exhibited some difficulty in focusing on the questions and a great desire to escape from the issues at hand.

 Dr. Thrasher stated his opinion that defendant was incompetent to stand trial. He expressed doubt that defendant would be able to withstand the rigors of trial which might increase his self-destructive tendencies and lead to further decomposition and significant problems. Dr. Thrasher also considered it unlikely that Horowitz could take the witness stand and testify in an "effective, descriptive manner regarding his business activities and the matters surrounding [them]." This conclusion was based on defendant's difficulty in relating during the interview. Dr. Thrasher was not optimistic about defendant's prognosis in the immediate future.

 After stating that he was willing to rely on Dr. Thrasher's testimony, defense counsel called Dr. Conrad to the stand when the Court indicated it would like to hear his testimony. Dr. Conrad was in general agreement with Dr. Thrasher. He testified that he had seen the defendant on four occasions including once at defense counsel's request. He read into the record a report which he submitted to defense counsel. In that report he said that defendant was "emotionally labile, . . . depressed, suicidal, self-decpreciatory (sic), unable to make decisions" and that he suffered from "loss of self-confidence and fear of loss of control." He characterized the defendant in the report as a person who appears to get along when life is calm and unruffled but who falls apart if the most insignificant complication appears. In the report Dr. Conrad concluded that a trial situation would be very disturbing to the defendant and that he might collapse under even mild interrogation.

 On the witness stand Dr. Conrad reiterated these findings and conclusions. He said that the defendant was emotionally very sick and suffered from depression, including suicidal tendencies, and fears of worthlessness, and that defendant was not capable of assisting in his own defense. On examination by the Court Dr. Conrad explained that defendant would become upset and would not be able to participate. He said, however, that defendant was not insane and that he believed defendant understood the proceedings against him.

 The last witness at the first hearing was Katherine Horowitz, the wife of the defendant. She testified that she viewed her husband's condition as "a complete nervous and emotional breakdown." He was not able to stand up under the slightest strain and "he couldn't do anything" if any problems arose. He got along so long as problems did not arise. Mrs. Horowitz described their life in Florida as "a very pleasant life". They entertain people, play tennis and bridge, walk on the beach, go swimming and have a "rather normal" social life.

 The letters and reports of Drs. Spoont and Almeida were admitted into the record. These reports basically agree with the testimony of Drs. Thrasher and Conrad concerning defendant's state of depression and inability to cope with stressful situations. They do not, however, deal specifically with the defendant's competency to stand trial.

 The hearing on April 5, 1973 did not resolve the question of competency to the Court's satisfaction. The testimony of the psychiatrists was brief and conclusory and it did not demonstrate a familiarity by the witnesses with the legal standards. The Court, therefore, on April 11, 1973 arranged to have the defendant examined by Dr. Robert V. DeSilverio, a psychiatrist. In a letter to Dr. DeSilverio the Court briefly explained the charges against the defendant and the standards of competency to stand trial. *fn6" The examination took place on April 18, 1973 and a hearing was held on April 24, 1973. Dr. DeSilverio's examination of the defendant consisted almost entirely of taking his history. The session consisted of an interview during which ...

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