United States District Court, E.D. Kentucky, Southern Division, London
RECOMMENDED DISPOSITION 
A. Ingram, United States Magistrate Judge.
8, 2018, Defendant Kim Myrick, through counsel, filed a
motion for a psychiatric examination and competency
determination. D.E. 78. Following a hearing, the undersigned
found that there was reasonable cause to believe that
Defendant may be suffering from a mental disease or defect
rendering him mentally incompetent, as defined in 18 U.S.C.
§ 4241(a). D.E. 93. Therefore, upon the required
findings, the Court ordered a psychiatric evaluation to
determine Defendant's competency. See id.; D.E.
evaluation occurred at FCI Englewood. All parties had access
to the resulting forensic report (“the Report”)
issued by forensic psychologist Jeremiah Dwyer, Ph.D. D.E.
172. The Report opines that, at the time it was completed,
Defendant was “presently competent to proceed.”
Id. at 23. It identified, however, certain cognitive
deficits and competency factors that could be impacted by
those deficits, leaving those factors to be assessed by the
Court. Id. at 22-23. After receipt and circulation
of the Report, the undersigned conducted a hearing pursuant
to 18 U.S.C. §§ 4241 and 4247(d) on October 22,
2018. D.E. 202. At that hearing, defense counsel presented
the testimony of Dr. Dwyer and requested a continuance of the
hearing to assess how to proceed. Defense counsel was later
replaced, and replacement counsel filed a motion to approve
the hiring of Dr. Dustin Wygant, a psychologist, to further
investigate Defendant's competency. The Court approved
that request (D.E. 221), and Dr. Wygant subsequently issued
his own Forensic Psychological Report. D.E. 264 (the
“Wygant Report”). The Wygant Report was provided
to counsel for the United States. Dr. Wygant opined that
Mr. Myrick has a mental defect (intellectual disability) that
impacts his ability to assist properly in his own defense. He
does appear to have minimal ability to understand the nature
and consequences of the proceedings against him. This implies
that while he may possess foundational aspects of competency,
he appears to lack the rational and decisional capacity often
required of defendants in a trial setting.
D.E. 264 at 13. He based this opinion on several limitations
he found Defendant suffers from in his ability to assist in
April 25, 2019, the Court reconvened the competency hearing.
At the outset, counsel indicated that an agreement had been
reached concerning Defendant's competency. Counsel for
the United States indicated that the Wygant Report had been
provided to Dr. Dwyer and that, based upon the Wygant Report
and additional information Dr. Dwyer had obtained, Dr. Dwyer
now agreed with Dr. Wygant's opinion. In order to develop
the record concerning the potential to restore
Defendant's competency, the Court heard the testimony of
both Dr. Dwyer and Dr. Wygant. Both agreed that treatment
should be undertaken to attempt to restore competency.
AS TO COMPETENCY
4241 codifies the competency principles of Dusky v.
United States, 362 U.S. 402 (1960) (per curiam). 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 factual understanding of the proceedings against
him.” Dusky, 362 U.S. at 402; see
also 18 U.S.C. § 4241(a) (phrasing test as whether
defendant is “unable to understand the nature and
consequences of the proceedings against him or to assist
properly in his defense”); United States v.
Nichols, 56 F.3d 403, 410 (2d Cir. 1995) (applying the
“two-prong” competency test from Dusky).
4247(d) governs the hearing and assures certain trial-type
rights. These include rights of confrontation,
cross-examination, and participation. See 18 U.S.C.
§ 4247(d); see also 18 U.S.C. § 4241(c)
(referencing § 4247(d) for hearing procedure).
Ultimately, per § 4241(d), 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 § 4241(a). This framework
suggests that the defense bears the burden, although the
cases are in disagreement on burden allocation. Compare
United States v. Chapple, 47 F.3d 1170, at *2 (6th Cir.
Jan. 6, 1995) (table) (burden on United States, though
without statutory analysis) and United States v.
Salley, 246 F.Supp.2d 970, 976 (N.D. Ill. 2003) (burden
on United States) with United States v. Simmons, 993
F.Supp. 168, 170 (W.D.N.Y. 1998) (“The burden to prove
a lack of competence is on the defendant.”). Here, the
proof is not disputed, and the Court need not resolve the
burden allocation question. See, e.g., Medina v.
California, 505 U.S. 437, 449 (1992) (indicating that
argument over burden, in competency context, only matters in
“narrow class” of cases where proof is “in
equipoise”). However, at the outset of the initial
hearing, the defense assumed the burden. D.E. 215 at 6.
Court has carefully reviewed and considered the Report, the
Wygant Report, the evidence presented at the October 22, 2018
hearing, and the additional testimony presented at the
reconvened hearing. Based upon that record, the Court
recommends that the District Judge find, by a preponderance
of the evidence, that Defendant is presently suffering from a
mental disease or defect rendering him mentally incompetent
to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist
properly in his defense per 18 U.S.C. § 4241(d).
HOSPITALIZATION PURSUANT TO 18 U.S.C. §
current posture, hospitalization is required under §
4241(d). Indeed, having found, by a preponderance of the
evidence that Defendant is not competent to proceed, §
4241(d) unequivocally states “the court
shall commit the defendant to the custody of
the Attorney General. The Attorney General
shall hospitalize the defendant for
treatment in a suitable facility (1) for such a reasonable
period of time, not to exceed four months, as is necessary to
determine whether there is a substantial probability that in
the foreseeable future he will attain the capacity to permit
the proceedings to go forward[.]” 18 U.S.C. §
4241(d)(1) (emphasis added). Based upon the Court's
findings herein, commitment is mandatory under §
4241(d). See, e.g., United States v.
Millard-Grasshorn, 603 F.3d 492, 494 (8th Cir. 2010);
United States v. Filippi, 211 F.3d 649, 651 (1st
Cir. 2000); United States v. Donofrio, 896 F.2d
1301, 1302-03 (11th Cir. 1990); United States v.
Shawar, 865 F.2d 856, 861 (7th Cir. 1989); United
States v. Cline, No. 04-CR-6068L, 2008 WL 4501934, at *1
(W.D.N.Y. Sept. 30, 2008).
the Court RECOMMENDS that the District Judge
find Defendant is presently suffering from a mental disease
or defect rendering him mentally incompetent to the extent
that he is unable to understand the nature and consequences
of the proceedings against him or to assist properly in his
defense per § 4241(d), and that Defendant be committed
to the custody of the Attorney General for treatment at a
appropriate facility designation is made, the undersigned
will order that Defendant remain at the facility for a
reasonable period of time, not to exceed four months, as is
necessary to determine whether there is a substantial
probability that he will attain the capacity to permit
further proceedings to take place in the foreseeable future.
18 U.S.C. § 4241(d)(1). If at any time during
Defendant's initial period of commitment, however, the
director of the facility determines that Defendant has
recovered his competency, the director shall file a