James "Jimmy" Donofrio, charged with extortionate means of debt collection, 18 U.S.C.A. Sec. 891, was found incompetent to stand trial. The district court committed the defendant to the custody of the United States Attorney General for examination, pursuant to 18 U.S.C.A. Sec. 4241. Donofrio appeals the commitment order on the ground that it is excessive. He argues that any period of commitment is unreasonable because evidence shows that he will never attain the capacity to permit a trial to proceed. We affirm.

Title 18 U.S.C.A. Sec. 4241(d) provides that if a court finds that a defendant is incompetent to stand trial, he must be committed to the Attorney General for hospitalization until it can be determined whether a probability exists that the defendant will regain the capacity to be tried.1 We hold that this statute is mandatory and that the district court did not have the authority to circumvent the hospitalization.

This statute was passed in response to the Supreme Court decision in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), which held that an incompetent defendant cannot be constitutionally confined beyond the reasonable period of time required to determine whether a substantial probability exists that mental competency for trial will be attained. An "indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial," said the Court, "does not square with the Fourteenth Amendment's guarantee of due process." Jackson, 406 U.S. at 731, 92 S.Ct. at 1854.

Donofrio argues that since the evidence at his competency hearing shows that his condition is permanent, it is a violation of Jackson to hold him, unless he is shown to be a danger under section 4246 of the statute.2 The permanency of Donofrio's condition was not an issue before the district court at that time, however. Once the court found by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to stand trial, then it was required "to commit the defendant to the custody of the Attorney General." The permanency of the condition would then be determined for later consideration by the court.

The Seventh Circuit recently confronted these issues and found the language of the statute mandatory and consistent with due process. It was argued in United States v. Shawar, 865 F.2d 856, 863 (7th Cir.1989), that because the incompetent would not recover, the purpose of the statute was fulfilled without commitment. The court held that the statute clearly provides that once a finding of incompetence to stand trial has been made, a defendant must be committed to the custody of the Attorney General. We agree with the holding of the Seventh Circuit.

Once the district court decides that a defendant is incompetent to stand trial, it is appropriate that he be hospitalized for a careful determination of the likelihood of regaining mental capacity to stand trial. The due process requirements of Jackson are met because the statute itself requires that the period of commitment be "reasonable" for that purpose. The statute limits confinement to four months, whether more time would be reasonable or not. Any additional period of confinement depends upon the court's finding there is a probability that within the additional time he will attain capacity to permit trial, 18 U.S.C.A. Sec. 4241(d)(2)(A), or if he is found to create a substantial risk to himself and to others, pursuant to 18 U.S.C.A. Sec. 4246.

While the magistrate's order contains language that arguably could prolong confinement beyond the statutory mandate, that language is not part of the order which we affirm. The district court's order patently follows the statute and is restricted by the statutory provisions.

Although jurisdiction of this appeal was questioned by the Court, it appears that both parties are correct in arguing that we have jurisdiction under 28 U.S.C.A. Sec. 1291 and the "collateral order" doctrine, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), as more fully set forth in United States v. Gold, 790 F.2d 235 (2d Cir.1986).

AFFIRMED.