United States v. Gigante

925 F. Supp. 967 (1996)

UNITED STATES of America,
v.
Vincent GIGANTE, Defendant.

Nos. CR 93-368, CR 90-446.

United States District Court, E.D. New York.

May 15, 1996.

Zachary W. Carter, United States Attorney (Andrew Weissmann, George Stamboulidis, Assistant United States Attorneys, of counsel), Brooklyn, NY, for plaintiff.

Slotnick & Shapiro, LLP (Barry I. Slotnick, Michael Shapiro, of counsel), New York City, for defendant.

MEMORANDUM AND ORDER

NICKERSON, District Judge:

Defendant Vincent Gigante, charged in two indictments dated May 30, 1990 and June 10, 1993 with committing crimes between 1980 and 1991, has moved pursuant to 18 U.S.C. § 4241 for a hearing to determine his mental competency to stand trial.

The 1990 indictment charges that Gigante and others committed crimes of labor payoffs, extortions, and mail frauds. The 1993 indictment alleges that he and others murdered six persons between July 10, 1980 and March 15, 1982, engaged in conspiracies to murder three other persons between June 1982 and 1991, and committed further crimes of labor payoffs and extortion.

On June 13, 1990 Judge Raymond J. Dearie ordered pursuant to 18 U.S.C. § 4241(b) that a psychiatric examination of Gigante be conducted. On June 20, 1990 he appointed two psychiatrists, Dr. Jonas R. Rappeport and Dr. Daniel W. Schwartz, to conduct psychiatric examinations and report. Thereafter, Gigante was examined by those two doctors and by two psychiatrists of his choosing, Dr. Abraham L. Halpern and Dr. Stanley Portnow. All four made reports and later testified at hearings before this court.

Dr. Rappeport reported that Gigante was not competent to stand trial because he was unable to understand the proceedings against him or to assist in his defense. Dr. Schwartz in his written report said that he found Gigante incompetent to stand trial. At the hearings Dr. Schwartz testified that he felt he had an obligation to come to a conclusion as to whether Gigante was competent or not, that he was "in no position to prove" that what Gigante was telling him was false, and that therefore, despite his concern that Gigante was malingering, he "was willing to state" Gigante was incompetent.

Dr. Halpern and Dr. Portnow reported that Gigante was not mentally competent to stand trial because he could not understand the proceedings or assist counsel.

In their testimony the doctors gave much the same account of their meetings with Gigante. In response to their questions Gigante, for example, could not make simple calculations such as dividing 18 by 6 or multiplying 3 by 4, did not know that Barry Slotnick was his attorney, deemed God his attorney, said God talked to him but at God's direction would not reveal what was said, remembered hardly anything, said he had visions, could not grasp the charges read to him, never talked in complete sentences of more than three or four words, and heard "bad" voices but on God's instruction would not tell what they said. Indeed, when faced with many questions Gigante declined to answer because God told him not to.

In short, the impression that emerged from Gigante's sessions with the doctors was that of a total incompetent, wholly unable to hold any kind of job, let alone a leading role in any kind of organization.

In coming to their conclusions the doctors took into account the hospital reports made from 1969 on by Gigante's treating psychiatrists. One of them, Dr. Eugene D'Adamo, had been Gigante's psychiatrist for some fifteen years at the time of the hearing. The reports record Gigante's visits to the hospital approximately once every year and describe Gigante's behavior and demeanor in terms almost identical to those used by the four examining doctors.

The reports depict a similar pattern for each of Gigante's many admissions. He is admitted because of hallucinations, delusions, agitation, paranoia, depression, lethargy, memory loss, and inability to concentrate. Members of his family describe him as hostile, withdrawn, argumentative, and unmanageable. After a few days, sometimes a few weeks, he is discharged as "improved."

For example, on September 24, 1980, after a two week stay he is discharged, and Dr. Hugh McHugh writes: "It often happens with him that as soon as he gets out of the other environment and gets into [sic] here, he gets motivated and begins to feel better." Again on March 24, 1982, after a fifteen day stay the doctor's discharge report states: "For some unknown reason, although he receives the same medication, he seems to do very well in the hospital. Perhaps his stay in the hospital gives him a motivation to leave the place."

Dr. D'Adamo also testified and confirmed what the reports stated. He said that Gigante appeared incompetent during the fifteen years of the doctor's treatment and could not at any time during those years have been gainfully employed or have been head of a business or crime family.

The doctor recounted, for example, that Gigante had such a bad memory he would forget the names of his daughters or where he had been that morning, was unable to subtract 7 from 100, was incapable of uttering, and in all the years Dr. D'Adamo treated him never did utter, a sentence of more than two or three words, claimed to hear "bad" people say bad things but on God's instruction would inform only God what those voices said, never had a cogent conversation with the doctor, claimed to have had frequent hallucinations, and appeared paranoid when faced with strange objects. The doctor testified that Gigante displayed all these symptoms of incompetency consistently from about 1980 to the present.

All four of the examining doctors testified that new information could lead them to change their opinions. Before the hearings both Dr. Schwartz and Dr. Rappeport were asked whether their opinions would change if they were presented with clear and convincing evidence that Gigante had either (1) actively conducted the affairs of the Genovese Family during the time he says he was mentally ill, or (2) planned well in advance of their diagnoses a feigned insanity defense. Dr. Rappeport wrote on March 10, 1991 that such evidence might change his opinion. Dr. Schwartz wrote on March 8, 1991 that if presented with such evidence he would conclude that Gigante was malingering and was fit to proceed.

After the psychiatrists testified the court heard testimony from former high ranking Members of organized crime and other witnesses. They gave evidence of Gigante's criminal activities during the years from the 1970s through 1991, evidence that had never been presented to the four examining doctors or to Dr. D'Adamo. Based on all the evidence the court makes the following findings.

THE GENOVESE ORGANIZED CRIME FAMILY

For many years there have been five organized crime families in New York City, the Genovese Family, the Gambino Family, the Colombo Family, the Lucchese Family, and the Bonano Family. These five are part of a nationwide criminal organization known as La Cosa Nostra. Of the five the two largest, the Genovese and Gambino Families, each have had some three hundred "made" Members and numerous associates. The chief business of each Family has been the making of money by resort to crime.

The Genovese Family engages in numerous illegal activities, including gambling, extortion, loan sharking, labor racketeering, bid rigging, mail fraud, and murder. The Family has large interests in the construction, music, and garbage industries, and controls unions, bars, strip joints, restaurants, and trucking firms. It has earned money from crimes related to the Javits Center, the Fulton Fish Market, and the New York Coliseum. In short, the Genovese Family is no pick-up gang of petty thieves. It is an affluent, sophisticated, and well disciplined criminal organization.

Like the other four Families, the Genovese Family has a structure comparable to that of military organizations or large legitimate businesses. It has a chief executive, called the Boss, an Underboss, and a Consigliere or counselor. These three officers are called the "Administration."

Below the Administration are Captains, the executive heads of crews composed of made Members, also known as soldiers, and associates. The Administration and the Captains receive shares of the proceeds from the crimes committed by the soldiers and associates. Controversies between Families are resolved by a Commission, consisting of, among others, the heads of the five Families, including the Boss of the Genovese Family.

The process of making a Member is as follows. After the proposed Member is approved by his Boss, his name is placed on a list distributed to the other four families. The Bosses of the other families circulate the list among Members of their own families to determine if there are objections to the proposed Member. After obtaining the approval of all the Families, the sponsoring Family can then induct him when it pleases.

Induction as a Member of a Family is coveted. It is an honor as well as a harbinger of large increases in income. But admission entails responsibilities. It requires, among other things, taking an oath of omertá, that is, an oath to remain silent to the outside world about the criminal affairs of the Family, never to betray anyone in the crime Family or in organized crime, and never to reveal to law enforcement personnel anything that might incriminate anyone in organized crime. The penalty for violation of this oath is death.

The tight organization of each of the five crime Families, their respect for and cooperation with each other, and the ferocity with which a breach of the oath of silence is punished, explain in significant part how difficult it is for law enforcement to obtain evidence of the crimes committed by Members of a Family. Unless some of those within organized crime dare to risk annihilation there is seldom a lively possibility of making a case against the leaders of organized crime.

Gigante has for many years been an active Member of the Genovese Family. By the late 1960s or early 1970s he had become a Captain. He was known as a tough, smart, and powerful Captain. He thereafter rose to become Consigliere and the behind the scenes leader of the Family during the reign of Anthony "Fat Tony" Salerno as Boss.

After Salerno was indicted and arrested in 1985 Gigante became the Boss in title as well as in fact. As such he ran the affairs of the Genovese Family. In 1990 after Gigante himself was indicted he established an "acting" Administration of the family. The official Administration was unchanged, and Gigante continued to run the Family, keeping tabs on those he had installed as the acting Administration.

From the credible testimony of the witnesses, including former Members of organized crime, it is clear that Gigante occupied high positions in the Genovese Family from at least the early 1970s until September of 1991 and as such performed executive functions.

GIGANTE'S MEASURES TO HIDE HIS ILLEGAL ACTIVITIES

Quite naturally Members of organized crime place great importance on preventing law enforcement from detecting their activities. The punishment for violation of the oath of omertá ensures that every Member take seriously the need to mask those activities.

It was only good sense for those engaged in organized crime to do things to minimize the risk of surveillance. Common practices were, for example, to avoid the use of private telephones that could be bugged, to try and "lose" law enforcement surveillance cars through evasive driving, and to hold criminal conversations out on the street rather than indoors where they might be overheard on a wire tap. Over the years Gigante took all such measures but went to even greater lengths than did most Members of organized crime. On one occasion in the late 1970s he told his criminal associates that, as a leader of the Genovese Family he did not wish to attend unnecessary Commission meetings because they might be "bugged" by law enforcement and he had "put a lot of time" into his "crazy act."

He told other influential Members of the Family to spread the word to the outside world that he was crazy, and they did so. In fact, one of them was caught on tape on February 2, 1985 saying that if Gigante were "pinched" in a pending organized crime case, "all the finagling" and "manipulating to fool the government" and "all them years he spent in that (expletive deleted) asylum" would have been "for nothing."

From 1969 through 1990 Gigante went about once a year to St. Vincent's Hospital in Westchester County (the Hospital) for psychiatric treatment, which his fellow Genovese Family Members Venero "Benny Eggs" Mangano and Dominic "Baldy Dom" Canterino described as a "tune-up." The reports show that Gigante gave the doctors the impression that he was an incompetent, frightened, isolated man, cared for by his elderly mother, and living in a tenement building in lower Manhattan.

Hospital visits were not the only means by which Gigante gave an appearance of incompetency to the outside world. He appeared disheveled on the streets, unshaven and in an old bathrobe and pajamas. He would mumble and babble to himself, and even urinate in the street. On one occasion in the early 1980s when he observed a law enforcement official he walked across the street, knelt down on the sidewalk outside a church, and appeared to pray before a statue. His "crazy act" was common knowledge among those in organized crime.

Gigante took other unusual steps to avoid apprehension. Concerned about electronic surveillance, he insisted that none of his criminal associates use his name. The Genovese associates were instructed in no uncertain terms that they were never to mention Gigante's name. They thus took to referring to him as "that guy" or touched their chin, "Chin" being a nickname for Gigante. Gigante even sent word to Joseph Gorgone, a Member of the Colombo Family, who had been captured on tape saying Gigante's name, that if Gigante was indicted as a result he would kill Gorgone. After a Member of the Genovese Family learned that Joe Fiore, an associate in the Lucchese Family, had mentioned Gigante's name in a gambling machine transaction, three men from the Genovese Family administered a beating to Fiore.

GIGANTE'S ACTIONS AND DECISIONS AS A LEADER

The testimony and other evidence presented to the court establish clearly and convincingly that during the years 1970 to 1991 Gigante was not the demented person he portrayed himself to be. During those years, in which the Hospital reports recount short stays, behavior suggestive of incompetency, and rapid recoveries, Gigante was taking actions and making decisions consistent only with an able, shrewd and determined man. A few examples will suffice.

After Gigante's stay at the Hospital commencing on April 27, 1970, with a discharge diagnosis of schizophrenia complete with hallucinations and delusions, he was running a "numbers" operation on the west side of Manhattan and had the power to exclude other crime Families from taking numbers in that area.

On January 13, 1971 and on September 20, 1971 he was back in the Hospital, where he said that he did not know the number of weeks in a year, could not name four presidents since 1900, and achieved a score of 55 on an I.Q. test. In that year he was participating as a Captain in resolving a dispute between the Genovese Family and the Colombo Family over which of the two Families had the right to direct the delivery of piece goods for a freight line.

In the years 1972, 1973, and 1975 he made four visits to the Hospital, with stays lasting from ten to seventeen days.

On May 25, 1976 he returned to the Hospital for ten days. In that year Salvatore Gravano, a Member of the Gambino Family, had a problem with Vincent DiNapoli, a Member of the Genovese Family, involving the construction business. Gravano arranged to meet with Gigante, then a Genovese Captain, at Gigante's club, The Triangle Social Club, where signs on the wall read "The enemy is listening" and "Tough guys don't squeal."

At the meeting Toto Auriello, Gravano's Captain, introduced a man named Dom as a Captain in the Genovese Family. Gigante immediately corrected him, saying that Dom had become the Consigliere. As a result of the meeting Gigante agreed to communicate with DiNapoli and straighten out the problem. He then did so.

In the late 1970s and early 1980s Gigante made five separate short visits to the Hospital on May 18, 1977, December 9, 1978, September 10, 1980, March 9, 1982, and April 20, 1983. In those years he took an active role in matters relating to the so-called Concrete Club. That was an effort in which four of the five Families pooled resources, namely, their controlled unions, suppliers, contract companies, and subcontractors in the concrete business. They made a deal to rig bids, to dictate which companies would get the jobs worth over $2,000,000 in New York City, and to exact a two percent kickback from every company that got a job at the elevated price.

Leaders of the four Families held various meetings in Staten Island in the late 1970s and early 1980s regarding this undertaking. Some of the meetings took place in the house of Paul Castellano, the Boss of the Gambino Family. At two of the meetings Gigante was a representative of the Genovese Family and Salvatore Gravano was a representative of the Gambino Family.

At one of the meetings Gigante argued that the leaders of the four Families should not be participating in such mini-Commission meetings. He said that the leaders should not gather to discuss mere business matters, more appropriately delegated to subordinates, but only to resolve structural issues, such as interactions between the Families or changes in the structure of the Cosa Nostra.

Gigante expressed concern that meetings attended by the Bosses, Underbosses, and Consiglieres might be "bugged" by law enforcement and that he did not wish to be arrested because he had "put a lot of time" into his "crazy act."

In May 1980 Gigante and other leaders in the Genovese Family questioned Jerry Pappa, a Genovese Member, for allegedly killing, without the Boss' permission, a Captain in the Colombo Family. The questioning took place at a restaurant on Thompson Street in lower Manhattan near Gigante's residence. Within a month and a half Pappa was killed.

Gigante met again with Gravano in the early 1980s after young associates in the crew of "Georgie Rush" Zappola, a Member of the Genovese Family, had wounded Nicky "Cowboy," a Gambino Family associate.

Robert Scarpacci, a Genovese associate, told Gravano that the young man who had shot at Nicky "Cowboy" had, with other youngsters in Zappola's crew, hatched a plot to kill Gravano in order to create enough confusion so that they would get "lost in the shuffle." Gravano told the story to his Captain, Toto Auriello, who passed it on to Paul Castellano, who in turn directed Tommy Bilotti, a Gambino Captain, to "reach out" to the Genovese Family.

At the meeting that followed Gravano told Gigante of the plot on his life. Gigante asked who had given Gravano the information. When Gravano replied that it was Scarpacci, Gigante said he was going to kill Scarpacci because he should have told the story to Gigante before going to the Gambino Family.

Conceding that Gravano had a right to kill the young men who had concocted the plot, Gigante requested a "pass" for them because they were the sons of Carli Pietro, a missing Genovese Member. Gravano agreed not to kill them provided Gigante would give a "pass" to Scarpacci for saving his life. Gigante agreed, saying that Gravano had made "a good request," and that he "would do the same thing" if in Gravano's position. He then gave Gravano his "word" that "we'll never hurt" Scarpacci.

A second meeting was held to hear Zappola's explanation for the attempt to kill Gravano. Gigante did not attend but his brother Mario did, saying that he was there not to make a decision but only to "hear the story" and "bring it back" to his brother. At this meeting, Zappola's excuse was plainly ridiculous. Soon thereafter he was killed.

Also in 1980, Gigante met with Genovese Captain Peter DeFeo in the Primavera Cafe, which was owned by DeFeo and Alex Morelli, a soldier in his crew. Gigante designated another Genovese Family soldier, "Jimmy Red" Caserta, to stand by as a guard for the meeting.

On August 26, 1980 Peter Savino, an associate in the Genovese Family, received a call to come to Genovese Member Joe Zito's office above Ruggiero's Restaurant. Savino complied and met Gigante and other Genovese Family Members, including Anthony "Fat Tony" Salerno, Bobby Manna, "Funzi" Tieri, Vincent "Fish" Cafaro, and Johnny Russo. On entering the room Savino appeared nervous. Gigante told him that he should calm down and not be nervous, that he was there only to tell the truth, and that they "were not the cops."

The assembled group then asked Savino questions about "Sally Young" Palmieri. The interrogation focused on allegations that Palmieri had dealt in drugs and taken the criminal assets of the deceased Jerry Pappa. Savino confirmed that Palmieri was involved in drugs and had assumed Pappa's assets. Palmieri was thereafter demoted from Captain to soldier, was shot in December 1980, and went "on the lam." Savino was transferred to Gigante's crew and told to report to Zito.

Gigante made his annual short visits to the Hospital on March 9, 1982, April 20, 1983, and May 7, 1984. He showed the same symptoms, received the usual treatment, and was rapidly discharged.

Within a short time after each discharge from the Hospital he was observed by the F.B.I. consorting with his criminal associates. Indeed, after his discharge on May 23, 1984 he was by 8:20 P.M. of that day in the company of Vito Palmieri (his driver), Jimmy Neopallia, Jr., Frank Condo, and Dominick "Baldy Dom" Canterino, all Genovese Members or associates. Commencing that night and during the balance of that year, Gigante was seen meeting, typically in the small hours of the morning, with Genovese Family Members and associates including Condo, Canterino, Palmieri, Dominick Cirillo, Louis "Bobby" Manna, Lawrence Dentico, Giuseppe Sabato, Venero "Benny Eggs" Mangano, James Napoli, Charles Padrone, John Barbato, and Michael Maione.

On February 6, 1985 Salerno, the Boss of the Genovese Family, and Sabato, a Captain in the Family, were heard on a government tape discussing the fact that the government was planning to arrest prominent organized crime Members, including Paul Castellano, Boss of the Gambino Family, and Anthony "Tony Ducks" Corallo, Boss of the Lucchese Family. Sabato said "if they get Chin [Gigante] they're wrapped up" and referred to "all the finagling" and "manipulating to fool the government." Salerno responded "if he gets pinched, all them years he spent in that [blank] asylum" would be "for nothing."

On February 19, 1985 the F.B.I. commenced arresting organized crime Members for crimes charged in an indictment in the United States District Court for the Southern District of New York, alleging, among other things, a racketeering conspiracy. Named as defendants were Salerno, Castellano, and the Bosses or Acting Bosses of the other three Families. The very next day, February 20, 1985, Gigante was admitted to St. Vincent's Hospital in New York City saying that he had experienced chest pains and a brief fainting spell that morning.

While Gigante was in that hospital, on February 25, 1985, Salerno speculated, on tape, "maybe it's a fake." Vincent "Fish" Cafaro replied "if it was what you say it was, a phony — his doctor would have been there" and "[h]is doctor wasn't there, the hospital took care of it."

On that same day, February 25, 1985 Salerno was arrested. Gigante was not charged in the case, and two days later, on February 27, 1985, seven days after he had checked into St. Vincent's Hospital, New York City, he was discharged. On March 4, 1985, less than a week after leaving that hospital, he returned to the Hospital. He displayed the usual psychiatric symptoms and was discharged two weeks later, on March 18, 1985, his "recovery" having followed the usual pattern.

From March 23, 1985 on Gigante was observed by the F.B.I. in meetings with other organized Members and associates, including Canterino, Condo, Palmieri, Cirillo, Manna, Barbato, Maione, Mangano, Peter "Blackie" Lombardi, Rosario Cucinotta, Albert Russo, Frank "Punchy" Illiano, and Frederick Giovanelli.

As noted above, after Salerno's indictment and arrest Gigante became the Boss of the Genovese Family. In this capacity he managed the internal and external affairs of the Family as well as its relationships with the other four Families. As Boss he made all ultimate decisions for the Family, including those as to who is made a Member or a Captain. As Alfonso D'Arco, formerly Acting Boss of the Lucchese Family, put it, Gigante "ran the whole show" for the Genovese Family.

On July 23, 1985 Gigante was hospitalized again, this time at New York Hospital, New York, where, among other things, he underwent tests of his heart functions. He was discharged on August 24, 1985, and in September and October 1985 was observed by the FBI conversing with his criminal associates.

In December 1985 John Gotti, Gravano, and other Gambino Members murdered their Boss, Paul Castellano. While Gotti and Gravano "reached out" before the murder to Members of the Colombo, Lucchese, and Bonano Families to get their reaction to the proposed murder, they decided not to discuss it with anyone in the Genovese Family, because Castellano and Gigante were "very close."

Thereafter the Gambino Family had a problem with John O'Connor, a union delegate for Local 608 of the carpenters union, a local historically controlled by the Genovese Family. O'Connor and some "working guys" had trashed a restaurant owned by a Member of the Gambino Family. Frank DeCicco, the Gambino Family Underboss, and Gravano spoke about the incident to Canterino, a Captain in the Genovese Family, who promised to speak to Gigante. A day or two later Gigante sent word to DeCicco that the Genovese Family had lost control of Local 608 and that the Gambino Family could take such action as it wished. The Gambino Family proceeded to retaliate. O'Connor was shot in the gluteus maximus and the legs.

For almost a three month period from late January through April 16, 1986, the F.B.I. observed Gigante nightly inside the town house at 67 East 77th Street, Manhattan, where Olympia Esposito, the mother of some of his children, lived. An F.B.I. agent positioned on a terrace of an adjoining building facing the glass windows at the back of the town house was able to see what Gigante was doing when he thought he was not being observed. For the entire period his behavior was that of an apparently normal man and entirely different from what he displayed to his doctors at the Hospital.

He was able to converse at length with others, including Members of the Genovese Family, to put on his glasses and read newspapers and documents, including what appeared to be a ledger book, to count money, to dim the lights on leaving, to dress and undress himself, to answer the door, and to operate the elevator. On the one or two occasions when he wore a bathrobe it was not the old one he donned to appear on the streets but one that appeared to be new.

He usually arrived between 10 and 11 at night and left at around 2 or 3 the next morning to return to the Triangle Social Club at 225 Sullivan Street.

In May and early June 1986 he was observed outside or inside the Triangle Social Club with his criminal associates. On June 18, 1986 Gigante went back to the Hospital for psychiatric treatment. He displayed the usual symptoms, made a fast recovery, and was discharged within two weeks. By July 21, 1986 and thereafter he was seen meeting with Members of the Genovese Family.

On March 3, 1987 he was admitted once more to the Hospital but stayed only twelve days. He had the usual symptoms but also complained of heart problems, which ceased after treatment by cardiologists. On discharge he returned to meetings with Genovese Family Members and associates.

About a year later, Gigante returned to the Hospital for psychiatric treatment, stayed for sixteen days, and was discharged improved on April 22, 1988. Later that year, in June, his cardiologist recommended to him that he have heart surgery because of aortic valve disease. The operation was performed at New York Hospital in August 1988, and Gigante received a replacement valve and a pacemaker. He remained in New York Hospital from August 21, 1988 to September 15, 1988.

Sometime later in 1988 Gigante attended a Commission meeting with leaders of the Gambino, Genovese and Lucchese Families. The Gambino Family had for some time been "pushing" for such a meeting. Gigante was reluctant but finally agreed. He chose as the meeting place the apartment of the brother of Frankie "Dap" Dapolito, a Captain in the Gambino Family. As Gotti later said, Gigante was "smart as a fox" to choose that situs. A relative of Gigante had an apartment in the same building. Gigante could sleep there and go to the meeting the next morning without appearing on the street and exposing himself to a possible "hit."

After Gotti and Gravano and Amuso and Casso (the Boss and Underboss of the Lucchese Family) had arrived inside the apartment, Gigante, wearing pajamas and a bathrobe, and Mangano (the Boss and Underboss of the Genovese Family) made their appearance.

During the exchange of pleasantries at the start of the meeting Gigante said he had just had an operation and picked up his pajama top to show his scar. The meeting then lasted between an hour to an hour and a half.

During the business part of the meeting the Lucchese leaders sought to resolve a problem concerning eleven Lucchese Members not recognized by the Genovese Family. Gigante opposed three of these men. One, he said, had acted as a "good samaritan" in that he had detained a fleeing armed robber so that the police could arrest him. The Lucchese leaders explained that the man was no longer a problem because they had murdered him. Gigante, after explaining his concerns about the other two and receiving assurance from Amuso and Casso they could accept them, waived his objections.

At the meeting Gotti brought up the fact that the Genovese Family for a long time had not filled numerous vacancies in membership. Gotti hoped that any new Members would feel indebted to him. But Gigante saw through this maneuver. He said that he was not yet ready to make "those moves within my Family," and he asked Gotti, "Why should I have to make men for you to respect them? If they were with me, you would respect them, no?" To which Gotti's obvious answer had to be "of course."

During the meeting, Gotti told Gigante "in a proud way" that the Gambino Family had recently made his son a Member. Gigante answered "I'm sorry to hear that." Gigante did not wish his own sons inducted as Members or indeed to participate at all in the criminal life.

Gigante and the others also discussed the subject of granting the Colombo Family, whose Boss, Carmine Persico, was in jail, a seat on the Commission. Persico had approved Victor Orena as official Acting Boss, and those present voted to accept Orena as such and as a member of the Commission.

Other than the way Gigante was dressed, there was nothing in his behavior or conversation at the meeting that was out of the ordinary or unusual.

Some time in 1989, Gigante wished to have Lucchese Member Anthony "Torty" Tortorello killed because he had made an insulting remark about Gigante's wife or girlfriend. Gigante received permission from Amuso to have Tortorello beaten. Gigante, of course, understood that he should not discipline a Member of another Family without the permission of the Boss of that other Family.

In January 1990, Corky Vastola, a Member of the New Jersey DeCavalcante Crime Family, was a partner with Gravano and others in a construction project in Staten Island and received his shares of the moneys from a Genovese Family associate named Barry Nicolo. Johnny D'Amato, the Underboss of the DeCavalcante Family, told Gravano that that family believed Vastola was "cooperating" and sought his assistance in killing him. Gravano decided that, with the help of Nicolo, Vastola could be lured to a place where he could be killed.

In order to use Nicolo the Gambino Family had to get permission from the Genovese Family. Gravano, then Underboss of the Gambino Family, spoke to Mangano, Underboss of the Genovese Family, about obtaining permission. Mangano said he could not make that decision but would have to "touch base" with Gigante. After a day or two Gigante told Mangano that he would have approved the request had it come from the Gambino Family, but that he refused to give such permission to the DeCavalcante Family because Vastola was a problem of that Family's own making. Mangano so reported to Gravano.

Also in January 1990, Gigante sent word to Gotti, who was facing charges in New York state court, that Vincent "Fish" Cafaro, then a former Member of the Genovese Family, was going to testify against Gotti and that an attorney, Pete Peluso, who was very close to Gigante, had information about Cafaro and could be helpful. Gotti took this advice seriously and told Frank Locascio to "reach out" to Peluso.

Gigante and Mangano were arrested on May 30, 1990. The next day Gigante entered Beekman Downtown Hospital complaining of chest pains, which were relieved with the administration of nitroglycerine. He was discharged on June 29, 1990.

After his arrest, Gigante set up an acting administration of the Genovese Family. Thereafter Barney Bellomo was introduced to Alfonso D'Arco, Acting Boss of the Lucchese Family, as the Acting Boss of the Genovese Family, "acting for Vincent Gigante," and James Ida was introduced by Bellomo as the Acting Consigliere.

When he was discharged from Beekman Downtown Hospital on June 29, 1990, Gigante went back to the Hospital the same day, with the usual symptoms. He remained there until November 27, 1990. Despite this hospitalization, Gigante continued to be the real Boss of the Genovese Family even after he installed the acting administration.

He supervised the substitutes that he had appointed. He ordered Nicky "the Blonde" Frustace to spy on Jimmy Ida, the man Gigante had appointed as Acting Consigliere, and Frustace continued to do so at least as late as September 1991. Gigante also held meetings in 1991 in the early hours of the morning with Ida at the Moondance Diner.

In 1990 Gigante was continuing to make important "business" decisions. For example, he selected, with the concurrence of the Colombo Family, a person to head a new administration for the New England based La Cosa Nostra Family in which the Genovese Family "had people." Bellomo and Ida were to go to Boston and make official the new administration. They asked Alfonso D'Arco, as Acting Boss of the Lucchese Family, to go with them and Acting Boss Victor Orena of the Colombo Family. D'Arco decided not to attend, but the others did and installed the new administration.

Up until September 1991, D'Arco had conversations with Genovese associate Jerry "the Jeweler" Messina, who was close to Gigante and at least through that date took care of the Triangle Social Club. Messina was a diabetic and had undergone heart surgery. Gigante was concerned about Messina and repeatedly cautioned him to take better care of his health, to watch his diet, and to stop smoking, drinking, and eating to excess. Gigante even sent Messina to his own doctor.

SUMMARY

The evidence before the court clearly establishes that Gigante was a forceful and active leader of the Genovese Family from at least 1970 on, that he became the Boss of the Family in 1985 and exercised his prerogatives as such at least up to September 1991, that his actions and decisions were wholly inconsistent with the behavior observed by the doctors at the Hospital causing them to find him incompetent for many years, and that his motive for putting on a "crazy act" for all those years was to avoid apprehension by law enforcement.

That motivation was increased when he was indicted in 1990 for various criminal acts of labor payoffs, extortions, and mail fraud, and was further augmented in 1993 when he was charged with more serious crimes of murder. It is thus unsurprising that Gigante's dentist and chiropractor testified in this court to his conduct in the last ten to twelve years almost identical to that observed by his psychiatrists over many years. To the dentist and chiropractor he appeared in pajamas and a bathrobe, disheveled, unshaven, depressed, lethargic, unable to communicate, understand, or make decisions.

The evidence also demonstrates that powerful figures in organized crime did not believe that Gigante was incompetent. As Alphonse D'Arco testified, a leader of a Family who actually developed mental illness would be killed. Indeed, a Genovese Captain named Willie Morretti was killed because of his mental illness, which caused him to speak indiscriminately about criminal enterprises in which he had taken part. When Hickey DiLorenzo began to behave erratically, he met the same fate.

But Gigante's colleagues in organized crime did not try to kill him. Nor did they even try to bar him from Commission meetings. Rather, they treated and spoke of him with respect. In January 1984, Salerno and Sabato were heard on government tapes discussing Gigante's knowledge of the organized crime scene and his power within it. Salerno, referring to another person in organized crime, asked "What the hell move could he make without Chin?." Sabato replied "Chin would [expletive deleted] him right away and he knows it" and then stated "Nobody knows more about this thing than Chin does." In May 1984, Salerno was heard on a government tape to say that he would send a list of proposed Members to Gigante for his approval. In February 1985, Salerno was heard to comment on Gigante's desire to keep track of events in organized crime: "He wants to know what everybody does you know Chin how he is."

Gotti, Gravano, and the other Gambino Members who killed Castellano in 1985 sought in advance the approval of the other Families, but were so wary of Gigante that they concealed their plans from the Genovese Family. Five years later, Gotti thought enough of Gigante's sanity to heed his warning that Fish Cafaro planned to testify against him.

At a Commission meeting before 1989, Lucchese Acting Boss Victor Amuso tried to convince Gigante that Genovese associate Peter Savino was a "rat." Gigante "wouldn't hear of it." He defended Savino and refused to act against him. Gravano and Casso also believed that Savino was cooperating and approached Mangano about having him killed. Mangano replied "I don't like him myself, but Chin loves him. We're not going to be able to do nothing."

Important leaders in the Genovese and other Families all believed that Savino was an informant. Yet none would kill him for fear of angering Gigante. That these leaders refrained from punishing a man they believed to be a "rat" is telling evidence of their perception of Gigante's competency and power.

After Victor Orena became the official Acting Boss of the Colombo Family in late 1988, he complained to D'Arco about Gigante's interference in the internal affairs of the Colombo Family.

All of these words and deeds make clear that Gigante's colleagues in organized crime considered him not an incompetent, but rather an active and potentially dangerous force with extensive knowledge and understanding of their world.

CONCLUSION

The court will submit the foregoing findings of fact to the psychiatrists who testified at the earlier hearings. The psychiatrists will be required to accept the court's findings as true and will be asked to say to what extent, if any, these findings alter their assessment of Gigante's competency to stand trial.

So ordered.