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United States v. Gray

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

October 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID SCOTT GRAY, Defendant.

          RECOMMENDED DISPOSITION

          Hanly A. Ingram, United States Magistrate Judge

         On October 2, 2018, the Court conducted a competency hearing in this matter, per 18 U.S.C. §§ 4241 and 4247(d).[1] D.E. 26. The hearing followed an oral motion for a competency evaluation made by Defendant's attorney at a June 21, 2018 hearing. D.E. 11. 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. 12. The Court, upon the required findings, ordered the psychiatric or psychological examination pursuant to 18 U.S.C. §§ 4241(b). D.E. 15. As a result of this motion, Defendant has not yet had his initial appearance and arraignment on the indictment.

         The Court ordered the examination to be performed at the SeaTac Federal Detention Center in Seattle, Washington. D.E. 15. All parties had access to the Forensic Report (“the Report”) issued by Dr. Cynthia A. Low, Ph.D. D.E. 22. In the Report, Dr. Low opined that Defendant is competent for trial purposes. Id. at 15. After receipt of the Report, the Court set a hearing (D.E. 23), and the parties appeared with counsel (D.E. 26). 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.

         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 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. Low. 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. Low directly observed Defendant via interviews and subjected him to a battery of psychological testing. D.E. 22. Dr. Low also made contact with defense counsel Christy Love, and received Ms. Love's report regarding Defendant's behavior. Id. at 8. The evaluator also secured and reviewed some legal documents, including Defendant's criminal history. Id. at 7.

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

(1) The Report indicates that, although Defendant “was generally a reliable historian . . ., his reported mental health symptoms were questionable and his credibility was not sound in that regard.” D.E. 22 at 2.
(2) Defendant has a history of drug use and violence going back to his childhood. Id. at 4. “He reported a childhood history of physical and emotional abuse.” Id. at 9. He “began using marijuana and pills during middle school.” Id. at 4. He was expelled from ninth grade after he was caught with a knife: “He planned to stab one or two people and a friend reported him.” Id. He attended alternative school the following year, but was expelled for planting marijuana. Id. He has been mostly incarcerated since age 18. Id. at 6.
(3) Defendant has “a significant history of substance abuse.” Id. at 4. He made his own alcohol in prison and injected it. Id. When released, he prefers methamphetamine, which he uses as a medication to make him feel normal. Id. Six months of substance abuse classes in prison were “not effective.” Id. at 5.
(4) Significantly, Defendant “claimed to have a second personality named FTP, ” FTP being an acronym for “fuck the police.” Id. at 6. FTP talks to Defendant constantly, and Defendant has difficulty controlling FTP, who “drives” Defendant and “takes over.” Id. Defendant “blames all of his violent actions on FTP.” Id. Defendant reports he experiences “blank spots” and he “loses time.” Id.
(5) During the evaluation, Defendant “was polite and cooperative and exhibited good eye contact.” Id. at 10. He was oriented to person and place but was unsure whether it was 2017 or 2018. Id. “No significant difficulties were observed with attention, concentration, or short-term memory.” Id. “Despite his reports of auditory hallucinations, no signs of psychosis were ever observed.” Id. He stated it was difficult to suppress FTP, and “appeared to be exerting much effort to control his anger.” Id. at 10-11.
(6) On the date of his arrival at SeaTac, July 16, 2018, Defendant initially “denied a mental health history, denied a history of hearing voices, but reported a significant substance abuse history.” Id. at 9. “Nothing unusual was observed with his mental status.” Id. Two days later, he “again denied a history of mental health problems or auditory hallucinations, and his mental status was normal.” Id. Over a week later, on July 27, he told evaluators that he had “past diagnoses of Bipolar Disorder, Schizophrenia, and Multiple Personality Disorder since he was a teenager.” Id. The physician who examined Defendant diagnosed him with “Anxiety Disorder, Essential hypertension, and Gastro-esophageal reflux disease without esophagitis.” Id. The report notes elsewhere that Defendant “has been tried on many different psychotropic medications beginning in prison in the mid 2000s, but none have worked.” Id. at 6. (7) On August 1, 2018, Defendant told a contract psychiatrist he suffered from depression and has “a dude in my head that tells me to do bad things.” Id. When this person takes over, Defendant “loses time up to several days and cannot recall what happened during that time.” Id. The contract psychiatrist diagnosed Defendant with “Dissociative and conversion disorder; Major depressive disorder, single episode; and Other stimulant use, with stimulant-induced disorder.” Id. at 10. Additionally, the psychiatrist “indicated Mr. Gray was difficult to diagnose accurately since he has never been off methamphetamine until five months ago.” Id.
(7) Various tests were administered, but the results were generally deemed invalid. Id. at 11. Defendant was suspected of malingering mental illness. Id. The evaluator estimated that Defendant's intellectual functioning was in the “low ...

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