United States District Court, E.D. Kentucky, Southern Division, London
GREGORY WEHRMAN, UNITED STATES MAGISTRATE JUDGE
August 29, 2018, the Court conducted a competency hearing in
this matter, per 18 U.S.C. §§ 4241 and
4247(d). D.E. 197. The hearing followed a motion
for a competency evaluation filed by Defendant's attorney
on April 9, 2018. D.E. 116. 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. 125, 136. The Court, upon the required findings, ordered
the psychiatric or psychological examination pursuant to 18
U.S.C. §§ 4241(b). D.E. 136.
Court ordered the examination to be performed at the Federal
Medical Center in Devens, Massachusetts. D.E. 236. All
parties had access to the Forensic Report (“the
Report”) issued by Dr. Chad Tillbrook, Ph.D. D.E. 190.
In the Report, Dr. Tillbrook opined that Defendant is
competent for trial purposes. Id. at 18-19. After
receipt of the Report, the Court set a hearing (D.E. 189),
and the parties appeared with counsel (D.E. 197). 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 or argument and
waived the right to examine or cross-examine the evaluator.
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 18 U.S.C. § 4241(c) (referring to the
hearing procedures outlined in section 4247(d)).
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). 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
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.
Tillbrook. 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.
Tillbrook directly observed Defendant via interviews and
subjected him to a battery of psychological testing. D.E.
190. Dr. Tillbrook 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 made while he
was at FMC Devens. Id. at 2.
Report is a thorough and comprehensive assessment of
Defendant's mental and psychiatric condition. Notably:
(1) The Report indicates Defendant had “a tumultuous
childhood” that included physical abuse and neglect.
D.E. 190 at 3. His mother and stepfather abused drugs, and
Defendant was placed in an alternative school due to behavior
(2) As memorialized in his bond report, Defendant reported
that he had been diagnosed with bipolar disorder and
depression. Id. at 5. Clarifying earlier statements,
he told the examiner he had never been psychologically
hospitalized as an adult, but he had been given Ritalin and
Adderall while an adolescent. Id.
(3) Defendant reported “a lengthy history of abusing
alcohol and illicit substances.” Id. He began
drinking alcohol at age 11, using marijuana at age 13, and
taking large quantities of “benzos” since
childhood. Id. He had recently been using synthetic
cannabinoids to defeat drug testing while on probation and
had “a long history of abusing opioids.”
Id. at 6. He used so much methamphetamine from 2015
to 2017 that he felt “psychotic for three years.”
Id. He also used synthetic substances such as MDMA
“a lot.” Id.
(4) As memorialized in his bond report, Defendant received
substance abuse treatment at Crossroads in 2016, but failed
to complete the program. Id. He also had six months
of court-ordered outpatient treatment at Cumberland
Comprehensive Care, to which he later self-admitted for
another six months. Id.
(5) During the examination period, Defendant was
“oriented to person, place, time, and
circumstances.” Id. at 7. He was cooperative.
No. psychotic symptoms were observed, and he denied having
any. He was “future-oriented and goal focused.”
Id. “His thought process was organized,
logical, and goal-directed.” Id. at 10.
Although he felt “overwhelmed, ” Defendant
attributed these feelings to his incarceration and the
criminal charges. Id. at 7.
(6) Defendant got along well with staff and his peers at FMC
Devens. Id. at 8. He was prescribed antidepressants
(id.), but his compliance with taking them was poor
(id. at 9).
(7) The WASI-II was administered to determine Defendant's
IQ. Id. at 9. His score of 69 fell within the
extremely low range. Id. But this score is
“not a valid representation of his intellectual