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United States v. Salery

United States District Court, M.D. Alabama, Northern Division

March 2, 2015

UNITED STATES OF AMERICA,
v.
ANDREW XAVIER SALERY.

OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

This criminal case is before the court on four questions: (1) whether defendant Andrew Xavier Salery has the mental competency to stand trial, that is, whether he is able to understand the nature and consequences of the proceedings against him and assist properly in his defense; (2) whether, if found incompetent, Salery's competency could be restored; (3) whether Salery was sane at the time of the offenses charged; and (4) whether, if convicted, Salery requires hospitalization in lieu of incarceration, or instead may require other forms of treatment during or after incarceration.

Based on the evidence presented, the court finds that Salery should be committed to the custody of the Attorney General for a mental-competency evaluation pursuant to 18 U.S.C. § 4241(b) and § 4247(b) & (c). Additionally, for reasons described below, and to the extent possible given the statutory time constraints and Salery's mental condition, the court also orders the Bureau of Prisons to offer its opinions regarding the other three questions.

A. Competency Evaluation

Salery is charged with three counts of felonious possession of a firearm; one count of possession of marijuana with intent to distribute; and one count of possession of a firearm in furtherance of a drug-trafficking offense. Defense counsel moved for a competency evaluation based on Salery's inability to communicate with counsel, arguing that Salery's susceptibility to manic and psychotic episodes complicate his ability to understand the proceedings and effectively assist in his defense. In support of the motion, defense counsel submitted the results of a psychological evaluation performed by a defense expert, Dr. Robert Shaffer, which raises serious concerns regarding Salery's competency. The government does not object to the defendant's motion.

After an extensive clinical interview and psychological testing, Dr. Shaffer concluded that Salery exhibited symptoms consistent with a diagnosis of Schizoaffective Disorder, Major Neurocognitive Disorder, Posttraumatic Stress Disorder, Borderline Personality Disorder, and Attention Deficit Hyperactivity Disorder. Neuropsychological testing revealed that Salery suffers from "moderate to severe impairment of executive functions mediated by the frontal lobes of the brain, " substantially impairing his judgment and ability to appreciate consequences of his behavior. Dr. Shaffer Report (doc. no. 23-1) at 3. His "frontal lobe deficits are consistent with mood conditions and with psychotic episodes, " and they are accompanied by visual and auditory hallucinations. Id. at 4. Dr. Shaffer recommended that Salery be treated in an inpatient psychiatric facility; that he be tested for Complex Partial Seizures; and that he undergo a comprehensive medication evaluation.

A court may order a competency evaluation on defendant's motion, or on the court's own motion, "at any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, " if there is "reasonable cause to believe that the defendant may presently be 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." 18 U.S.C. § 4241(a). The court may order a defendant to be committed for a reasonable period to the custody of the Attorney General to be placed in a suitable Bureau of Prisons facility for this competency examination. 18 U.S.C. § 4241(b); 4247(b).

Based on the representations made by Salery's counsel in the motion and during a conference call held on the record on February 25, 2015, as well as on the evaluation by Dr. Shaffer, the court finds reasonable cause to believe Salery is not competent. The court, therefore, will order Salery committed to the custody of the Attorney General for evaluation at the Bureau of Prisons pursuant to 18 U.S.C. §§ 4241(b) and 4247(b). The examination must be completed within a reasonable period of time, not to exceed 30 days; the director of the facility to which Salery is committed may apply for a reasonable extension, not to exceed 15 days. 18 U.S.C. § 4247(b).

Once the examination is complete, the examiner will prepare a psychological report and file this report with the court and with counsel, pursuant to 18 U.S.C. § 4247(c). This report should include a description of Salery's history and present symptoms; the psychiatric, psychological and medical tests administered and their results; and the examiner's findings. Id . The report should also include the examiner's opinions as to diagnosis, prognosis, and whether Salery is 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. 18 U.S.C. § 4247(c)(4)(A).

B. Other Questions

When a defendant raises serious competency concerns, one or more mental-health proceedings often follow this initial competency evaluation. If the defendant is found incompetent, the court then would be required to determine if his competency can be restored, pursuant to 18 U.S.C. § 4241(d). If the defendant is found competent, the criminal trial will ensue, and the defendant may raise the defense of insanity at the time of the offense, pursuant to 18 U.S.C. § 4242. Alternatively, if the criminal trial results in a conviction, the defendant may be recommended to undergo hospitalization in lieu of incarceration, pursuant to 18 U.S.C. § 4244, or the defendant may require mental-health treatment during or after his term of incarceration.

When such issues arise, the court requires an expert evaluation to assist in its determinations. These evaluations all are conducted pursuant to the statutory guidelines outlined in § 4247(c), but each issue requires the examiner to make a distinct ultimate finding, relevant to the particular question raised. These evaluations also often require the court to send off the defendant for an additional period of commitment.

Successive psychiatric commitments cause inconvenience to the defendant. They also can disrupt the course of treatment for a defendant with serious mental-health issues. Therefore, because the court predicts that Salery's case will require the court to make one or more of the above determinations, to the extent these determinations can be made now during the competency commitment resulting from this order, the court seeks a global assessment of ...


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