INTRODUCTION
On June 4, 2018, a criminal complaint was filed alleging that defendant Donald Brennan ("Defendant") violated
BACKGROUND
The criminal complaint against Defendant was filed on June 4, 2018. Brennan , No. 18-mj-5083, Dkt. 1. The case was assigned to United States Magistrate Judge Michael J. Roemer, and an initial appearance was held on June 5, 2018, at which time the Government moved for detention.
An appearance was held before Judge Roemer on June 8, 2018; however, no detention hearing occurred because Defendant had not yet undergone the mental health examination.
The parties appeared before Judge Roemer on June 12, 2018. Brennan , No. 18-mj-5083, Dkt. 6. Again, the detention hearing did not occur because Defendant had not yet undergone a mental health evaluation.
On July 2, 2018, the Court forwarded to the parties a copy of a mental health evaluation performed at the Little Valley Jail. (Dkt. 6 at 6; Dkt. 8 at 2-4). On July 27, 2018, Defendant filed a motion for a competency hearing, as well as notices under Federal Rule of Criminal Procedure 12.2(a) and (b) of his intent to assert an insanity defense at trial and to introduce expert evidence on that issue. Brennan , No. 18-mj-5083, Dkt. 7. That same day, a status conference was held and Judge Roemer granted the defense request (joined by the Government) and directed both a competency evaluation and a criminal responsibility evaluation.
Defendant was thereafter transported to the Metropolitan Correctional Center, New York ("MCC Manhattan") for the competency and criminal responsibility evaluations. Defendant was first taken to the Metropolitan Detention Center, Brooklyn ("MDC Brooklyn"), where he arrived at the latest on August 9, 2018. (Dkt. 8 at 14). Defendant arrived at MCC Manhattan
On September 27, 2018, Judge Roemer held another status conference. Brennan , No. 18-mj-5083, Dkt. 11. Defense counsel informed Judge Roemer that Defendant's competency and criminal responsibility examinations were ongoing, and Judge Roemer scheduled an additional status conference for December 3, 2018.
The written competency and criminal responsibility evaluations were completed on November 13, 2018. (Dkt. 8 at 8, 26). The Court received copies on November 26, 2018, and provided copies to the parties on November 28, 2018. (Dkt. 6 at 8-9).
Counsel appeared before Judge Roemer on December 3, 2018; Defendant was not present. Brennan , No. 18-mj-5083, Dkt. 13. In response to Defendant's motion, and upon the stipulation of the Government, Judge Roemer found by a preponderance of the evidence that Defendant is presently suffering from a mental defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him and unable to assist in his own defense.
Due to transportation delays, the oral argument on Defendant's motion to dismiss was rescheduled to December 19, 2018. However, oral argument was not held that day because Defendant was not present, again because of transportation issues.
On January 3, 2019, Defendant filed an appeal of Judge Roemer's decision, which was assigned to the undersigned. (Dkt. 1).
Defendant filed additional briefing regarding his appeal on January 10, 2019 (Dkt. 6), and the Government filed a response on January 14, 2019 (Dkt. 9). Oral argument was held before the undersigned on January 15, 2019, and the Court reserved decision. (Dkt. 10).
DISCUSSION
I. Standard of Review
Defendant has asked this Court to review Judge Roemer's denial of his motion to dismiss and finding that he must be committed to the custody of the Attorney General for hospitalization to attempt to restore his competency. Although neither party has briefed the issue, the Court must determine as an initial matter the appropriate standard of review.
Under Federal Rule of Criminal Procedure 59, a magistrate judge may determine "any matter that does not dispose of a charge or defense." Fed. R. Crim. P. 59(a). A party may file objections to a non-dispositive ruling by a magistrate judge, and the district judge will review the order and set aside or modify any part of it that is "contrary to law or clearly erroneous."
Here, Defendant's motion to dismiss dealt with a dispositive matter and therefore the Court reviews Judge Roemer's denial of that request de novo . With respect to Judge Roemer's order finding Defendant incompetent and committing Defendant to the custody of the Attorney General under § 4241(d), "the authority of a magistrate judge to issue competency decisions with or without a referral order has not been addressed by the Second Circuit." United States v. Foltz , No. 16-MJ-511,
II. Commitment to the Attorney General for an Attempt at Restoration
Defendant does not challenge Judge Roemer's determination that he is not currently competent to stand trial; to the contrary, defense counsel affirmatively sought this relief land confirmed on the record at oral argument before the undersigned that Defendant agrees with that determination.
Under § 4241(d), if the Court finds by a preponderance of the evidence that a "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," then "the court shall commit the defendant to the custody of the Attorney General."
Here, Judge Roemer found by a preponderance of the evidence that Defendant was incompetent, and no challenge to that finding has been made. Rather, both parties agreed with that determination and had advocated that Judge Roemer make that determination. The Court therefore adopts Judge Roemer's finding that Defendant is currently incompetent. Accordingly, under the plain language of § 4241(d), and as confirmed by the Second Circuit in Magassouba , the Court is without discretion to do anything other than commit Defendant to the custody of the Attorney General for an attempt at restoration.
Defendant argues, relying on Jackson v. Indiana ,
Moreover, although the Second Circuit has not expressly ruled on the issue, multiple federal Courts of Appeals have rejected the argument made by Defendant here. See, e.g. , United States v. Dalasta ,
[T]he miracles of science suggest that few conditions are truly without the possibility of improvement. Therefore, even where the medical reports presented to the district court showed by a preponderance of the evidence that the condition was permanent, the statutory scheme appropriately affords additional time during which the Attorney General may explore medical options.
At the oral argument on the instant motion, defense counsel raised two additional arguments related to his commitment to the Attorney General and subsequent hospitalization, neither of which were raised before Judge Roemer or in the written filings with this Court. First, Defendant argued that
The first of these arguments is without merit. The Attorney General has express statutory authority to delegate his functions to the various agencies of the Department of Justice. See
Nothing in the text of § 4241(d) suggests that the Attorney General's duties thereunder are non-delegable, nor has Defendant identified any authority supporting that proposition. To the contrary, the sole case cited by Defendant in connection with this argument is Dalasta . However, in Dalasta , the Eight Circuit explicitly declined to address the issue.
Nonetheless, in view of Defendant's concerns, the Court will order that the BOP provide a report regarding Defendant's prognosis within 45 days of his hospitalization. If it appears from that report that there is no reasonable chance that Defendant will regain competency in the foreseeable future, this information will help inform the Court as to the reasonableness of the length of any further hospitalization, and if necessary and appropriate, the Court can order that the hospitalization be ended prior to the expiration of the four-month period.
III. Speedy Trial Issues
Defendant also argues that the criminal complaint against him should be dismissed because he has been deprived of his statutory and constitutional rights to a speedy trial. The Court finds these arguments without merit, for the reasons discussed below.
A. Speedy Trial Act
Pursuant to the STA, "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested[.]"
Defendant's STA argument relies on § 3161(h)(1)(F), which provides that transportation delays in excess of ten days are presumptively unreasonable, and on
Defendant's STA arguments must fail because he has not shown that more than 30 non-excludable days have elapsed since June 5, 2018. As an initial matter, Defendant has not raised any argument that the time prior to July 27, 2018, was not properly excluded. The Court finds that the time prior to July 27, 2018, was properly excluded for the reasons contemporaneously stated on the record.
Turning to the time period between July 27, 2018, and August 20, 2018, as previously set forth, on July 27, 2018, Judge Roemer, without objection from defense counsel, excluded all time through September 27, 2018, pursuant to §§ 3161(h)(7)(a) and (h)(7)(B)(iv). Multiple circuit courts have held that the ten-day limitation on transportation delays does not impact "the ends-of-justice continuances that courts may grant under § 3161(h)(7)." United States v. Turner ,
Moreover, even setting aside the ends-of-justice continuance granted by Judge Roemer on July 27, 2018, binding Second Circuit precedent provides that, as a result of the exclusion found at § 3161(h)(1)(A), "delays arising from mental competency examinations and pretrial motions are excluded from the running of the speedy trial clock, without any inquiry into the reasonableness of the delay." United States v. Vasquez ,
Defendant argues that more recent out-of-circuit caselaw undercuts Vasquez . In particular, Defendant cites United States v. Tinklenberg ,
This Court cannot disregard established Second Circuit precedent simply because other circuit courts have reached differing conclusions.
The Court next considers the time period between August 20, 2018, and November 8, 2018, during which Defendant was undergoing competency and criminal responsibility evaluations. Defendant argues that this time period exceeded the maximum of 75 days for criminal responsibility examinations set forth in § 4247(b), and that the excess days (a total of 5 days) are non-excludable.
Next, all the time from December 3, 2018, when Judge Roemer found Defendant incompetent, and continuing through the present, is excluded under § 3161(h)(4), regardless of any transportation delays. See, e.g. , United States v. Patterson ,
Finally, the Court notes that the Government made an oral motion for detention on June 5, 2018, and that motion remains pending.
In sum, with respect to the time that elapsed between July 27, 2018, and the present (the relevant time period for purposes of Defendant's statutory speedy trial challenge), the time period through December 3, 2018, was excluded in the interests of justice pursuant to § 3161(h)(7) based upon the findings made by Judge Roemer at the appearances on July 27, 2018, and September 27, 2018; the time between July 27, 2018, and December 3, 2018, was also automatically excluded pursuant to § 3161(h)(1)(A) and Vasquez , and the fact that the length of the evaluations exceeded the allowable time set forth in § 4247(b) does not impact this conclusion; as of December 3, 2018, the time has been automatically excluded pursuant to §§ 3161(h)(1)(D), (h)(1)(H), and (h)(4) ; and the entire period has been automatically excluded pursuant to § 3161(h)(1)(D) because of the Government's pending motion for detention. Accordingly, and for all the reasons discussed above, the Court denies Defendant's motion to dismiss based on an alleged violation of the STA.
B. Constitutional Speedy Trial Right
Defendant has also argued that his Sixth Amendment right to a speedy trial has been violated, separate and apart from any violation of the STA. (Dkt. 6 at 21-23). The Court finds this argument without merit.
"The Sixth Amendment guarantees that, '[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial....' " Doggett v. United States ,
"The first of these is actually a double enquiry. Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay, since, by definition, he cannot complain that the government has denied him a 'speedy' trial if it has, in fact, prosecuted his case with customary promptness."
"It comes as no surprise that courts have been unable to define 'presumptively prejudicial.' " United States v. Vassell ,
However, the Court need not resolve whether this case meets the threshold of presumptively prejudicial, because even assuming that it does, consideration of the Barker factors demonstrates that no Sixth Amendment violation has occurred. As to the first factor, "[t]he length of the delay here was less extensive than that tolerated in other cases." Vasquez ,
With respect to the second factor:
Although no single Barker factor is a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial, the second factor-reason for delay-is often critical. The Sixth Amendment is rarely violated by delay attributable entirely to the defendant, or by delay that serves some legitimate government purpose.
United States v. Moreno ,
The third Barker factor-Defendant's assertion of his speedy trial rights-favors the Government. Defendant did not raise any speedy trial issues until December 3, 2018, after the bulk of the delay he now complains of had elapsed. To the contrary, the Court has listened to the audio transcripts of the prior proceedings in this matter, and Defendant raised no objections to the repeated ends-of-justice exclusions granted by Judge Roemer, other than to state that he reserved his right to argue that certain transportation delays were unreasonable. The Court therefore finds that this factor favors the Government. See United States v. Shine , No. 17-CV-28-FPG,
With respect to the fourth Barker factor, "[e]xcessive pretrial delay can inflict three kinds of cognizable prejudice: (i) oppressive pretrial incarceration, (ii) anxiety and concern of the accused, and (iii) the possibility that the defense will be impaired." Moreno ,
In this case, Defendant has suffered some prejudice because he has been in custody since his arrest and has suffered the attendant anxiety. However, "the instant facts do not present any uniquely oppressive circumstances to be afforded additional weight, short of the general impact of [being in custody]." United States v. Newbern , No. 15-CR-98-FPG-2,
Considering and balancing all the Barker factors, the Court rejects Defendant's Sixth Amendment speedy trial claim for the reasons discussed above. Under these circumstances, dismissal of the criminal complaint on Sixth Amendment speedy trial grounds is not warranted.
IV. Bail Reform Act
Defendant's final argument is that he should be released from custody because the Bail Reform Act does not apply to him. (Dkt. 6 at 23-24). Defendant's argument relies on an unpublished case from the District of New Jersey, United States v. Peppi , No. 06-157 (AET),
CONCLUSION
For the foregoing reasons, and upon de novo review, the Court denies Defendant's appeal (Dkt. 1) and affirms Judge Roemer's Decision and Order denying Defendant's motion to dismiss and for release from custody, Brennan , No. 18-mj-5083, Dkt. 18, and the Court also affirms Judge Roemer's Order determining that Defendant must be committed to the custody of the Attorney General pursuant to § 4241(d),
SO ORDERED.
Notes
Written transcripts of the appearance before Judge Roemer have not been prepared. Instead, the Court has listened to the relevant audio transcripts to inform itself as to the proceedings before Judge Roemer.
Pursuant to the audio transcript of the appearance before Judge Roemer on July 27, 2018, the Government indicated its position that the time was excluded under § 3161(h)(1)(A) and also requested that the time through the completion of the reports concerning the competency and criminal responsibility evaluations be excluded in the interests of justice. In response to the Government's statements in that regard, defense counsel responded that he had no objection. However, Judge Roemer imposed a limit on the interests-of-justice exclusion by setting a status conference for September 27, 2018, and only granting the STA exclusion under § 3161(h)(7) through that status conference date.
According to the audio transcript of the appearance on September 27, 2018, Government counsel asked that the time be excluded through the next scheduled appearance on December 3, 2018, referencing §§ 3161(h)(1)(A) and (h)(4). In response, defense counsel indicated that he agreed with counsel for the Government but wanted to reserve his client's rights under § 3161(h)(1)(F) and not waive any time for transportation in excess of 10 days. Judge Roemer then made a finding on the record that "the ends of justice served by the requested continuance outweigh the best interests of the public and the defendant in a speedy trial, and the time between now and December 3, 2018, shall be excluded from the speedy trial clock." Thus, regardless of any automatic exclusions from the speedy trial clock as discussed by counsel, Judge Roemer granted an interests-of-justice exclusion through December 3, 2018, at the appearance on September 27, 2018.
Defense counsel notes in his memorandum of law that Defendant was not present at the hearing on December 3, 2018, wherein Judge Roemer found that Defendant was incompetent. (Dkt. 6 at 9). A criminal defendant has a constitutional right to be present "at all stages of the proceedings where fundamental fairness might be thwarted by [his] absence." Grayton v. Ercole ,
It is not clear whether defense counsel is also contending (similar to the defendant in Dalasta ) that the BOP is improperly limiting the Attorney General's discretion via the adoption of policies regarding suitable facilities under § 4241(d). Defendant raised the delegation issue here for the first time at oral argument and he has not objected to any specific policies. The Court cannot find in a vacuum that unspecified BOP policies render the statutorily-authorized delegation of the Attorney General's functions unlawful.
In light of the clear discussion of the transportation exclusion in Vasquez , the Court is puzzled by Defendant's argument that the Vasquez court "didn't hold that the 10-day cap on excludable time for transportation delays doesn't apply to transportation to and from competency evaluations." (Dkt. 6 at 20). To the contrary, the Vasquez court found that a transportation delay of eight months was subsumed within the § 3161(h)(1)(A) exclusion, irrespective of the ten-day limitation on transportation delays.
The Court notes that the presumption of unreasonableness for transportation delays in excess of ten days is rebuttable. See, e.g. , United States v. Zabawa ,
The Sixth Circuit's decision in Tinklenberg was ultimately affirmed on different grounds by the Supreme Court. See United States v. Tinklenberg ,
At least one other circuit court appears to have taken the same approach as the Second Circuit. See United States v. Tewid ,
Because the Court reaches this conclusion, it need not address the alternate argument, raised by the Government, that the transportation delay ceased on August 9, 2018, when Defendant reached the New York City area, and that any delay thereafter was due to a housing issue. (Dkt. 9 at 8).
Separate and apart from the automatic exclusion pursuant to § 3161(h)(1)(A), the time from August 20, 2018, through November 8, 2018, was also excluded based on Judge Roemer's interests-of-justice exclusions granted at the appearances on July 27, 2018, and September 27, 2018, whereby an interests-of-justice exclusion of time was ultimately granted through December 3, 2018. While defense counsel noted at the appearance on September 27, 2018, that he was reserving his client's rights under § 3161(h)(1)(F) and not waiving any time for transportation delays in excess of 10 days, that provision (§ 3161(h)(1)(F) ) does not impact the ends-of-justice continuances granted under § 3161(h)(7). See Conlan ,
It is not clear what precisely is the appropriate sanction for a § 4247(b) violation, but dismissal does not appear to be an available remedy. See, e.g. , United States v. Gould , No. 6:13-cr-175-Orl-31GJK,
The Court has considered Defendant's argument that the Bail Reform Act does not apply to him and has rejected it, for the reasons discussed in Part IV of this Decision and Order. The detention hearing in this matter has been held in abeyance due to the proceedings regarding Defendant's competency. However, if Defendant wishes to have a detention hearing, he is free to request that such a hearing be held before Judge Roemer. See Smith ,