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United States v. Perry

United States District Court, E.D. Kentucky, Southern Division, London

April 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROY PERRY, Defendant.

          RECOMMENDED DISPOSITION

          Hanly A. Ingram United States Magistrate Judge

         On April 4, 2018, the Court conducted a competency hearing in this matter, per 18 U.S.C. § 4241 and 4247(d).[1] D.E. 32. The hearing followed a motion for a competency evaluation filed by Defendant's attorney on January 10, 2018. D.E. 22. The Court granted the motion, ordered an evaluation in a custodial setting, and Defendant was remanded to the custody of the United States Marshal. D.E. 24. The Court, upon the required findings, ordered the psychiatric or psychological examination pursuant to 18 U.S.C. §§ 4241(b). D.E. 26.

         The Court ordered the examination to be performed at the Federal Medical Center in Lexington, Kentucky. D.E. 26. All parties had access to the Psychiatric Report (“the Report”) issued by Dr. Allyson N. Wood, Psy.D. D.E. 30. In the Report, Dr. Wood opined that Defendant is competent for trial purposes. Id. at 9. After receipt of the Report, the Court set a hearing (D.E. 29, 31), and the parties appeared with counsel (D.E. 32). During that hearing, the parties stipulated to the admissibility of the Report, as well as to the Report's findings. The parties also waived introduction of other proof and argument in opposition, and waived the right to examine or cross-examine the evaluator. Id.

         Section 4241 codifies the competency principles of Dusky v. United States, 362 U.S. 402 (1960). Thus, to be competent, a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “a rational as well as a factual understanding of the proceedings against him.” Dusky, 362 U.S. at 402; see also 18 U.S.C. § 4241(a) (phrasing the test as whether a defendant is “unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense”). Section 4247(d) of 18 U.S.C. governs the competency hearing, and assures certain trial-type rights. These include the right to confront and cross-examine witnesses, and the right to participate in the hearing. See id.; see also 18 U.S.C. § 4241(c) (referring to the hearing procedures outlined in section 4247(d)).

         Ultimately, per section 4241(d) and based on the hearing, a defendant is not competent if, “after the hearing, the court finds by a preponderance of the evidence that the defendant” meets the incompetency definition of section 4241(a). This framework does not dictate which party bears the burden, which has led to disagreements among the Circuits. See United States v. Carter, No. 1:12-CR-29, 2013 WL 6668715, at *11 (E.D. Tenn. Dec. 18, 2013) (compiling cases).[2] Here, the proof is not in any way disputed, and the Court need not resolve the burden allocation question. See Medina v. California, 505 U.S. 427, 449 (1992) (indicating that argument over burden, in competency context, only matters in “narrow class” of cases where the proof is “in equipoise”).

         Defendant stipulated as to both the admissibility and the substance of the Report. Accordingly, the only proof concerning Defendant's competency is the expert analysis of Dr. Wood. The Report reflects personal observation, a review of Defendant's available medical history and status, sufficient psychological testing, and a thorough assessment of Defendant's abilities in light of the applicable competency standards. The author analyzed Defendant's history, course of evaluation, and testing performance. Dr. Wood directly observed Defendant via interviews and subjected him to a battery of psychological testing. D.E. 30. Dr. Wood also made contact with the prosecutor and defense counsel. Id. at 2. The evaluator also secured and reviewed some legal documents and analyzed records of Defendant's outgoing phone calls and emails made while he was in Lexington. Id. at 2.

         The Report is a thorough and comprehensive assessment of Defendant's mental and psychiatric condition. Notably:

(1) The Report indicates Defendant “reported a history of methamphetamine, Suboxone, and Xanax abuse, ” involving massive amounts of daily use. D.E. 30 at 3. While in the Laurel County Detention Center, Defendant suffered “delirium tremens . . . as a result of withdrawal from the aforementioned substances” and the jail staff prescribed Risperdal, an antipsychotic, “for stabilization purposes.” Id.
(2) Defendant “left school in the sixth grade to devote more hours to work on the farm.” Id. For the last thirty years, his primary income source has been Social Security benefits for his “learning disability.” Id. at 4.
(3) Once in Lexington, Defendant “did not appear to exhibit any signs or symptoms of acute psychological distress, and he reported none. Id. He adjusted “adequately, ” and had no problem following rules. Id. He communicated coherently with his daughters through emails and telephone calls, discussing “financial and personal property affairs.” Id. He told one daughter, “I'm stable now. I'm in my right mind and I'm off drugs. I didn't know where I was when I was strung out on drugs.” Id.
(4) According to the examiner, Defendant “presented as calm and in good behavioral control” with “coherent, organized, and goal-directed” thought processes and verbalizations. Id. at 5. There was “no evidence of a mood disorder, ” although Defendant reported he had been bipolar. Id. at 7.
(5) Defendant was diagnosed with borderline-range intellectual functioning (“mild intellectual disability”), along with stimulant use disorder, opioid use disorder, and sedative, hypnotic, or anxiolytic-use disorder. Id. He is reported to be at “a high risk for relapse” into drug use. Id.
(6) Defendant explained that “his difficulties in communication and recalling information, ” as reported by his attorney, “were due to ...

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