United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
H. THOMPSON UNITED STATES DISTRICT JUDGE
Brandon E. Phaly is charged with one count of production of
child pornography and one count of receipt of child
pornography. This case is before the court on Phaly's
motion for an evaluation of his current mental condition. An
on-the-record hearing was held on January 31, 2018. The court
concludes that Phaly should be committed to an appropriate
Bureau of Prisons (BOP) facility for evaluations of the
following five matters.
COMPETENCY TO STAND TRIAL
on the representations made by Phaly's counsel and mother
at the January 31 hearing, the court has a “bona fide
doubt” regarding Phaly's competency to stand trial.
See United States v. Nickels, 324 F.3d 1250, 1252
(11th Cir. 2003). They described him as withdrawn and
non-communitive, perhaps autistic or intellectually disabled.
there is reasonable cause to believe Phaly lacks the mental
capacity (1) to understand the nature and consequences of the
criminal proceedings against him or (2) to assist properly in
his defense, the court finds that a psychiatric examination
addressing both of these disjunctive factors,
conducted pursuant to 18 U.S.C. §§ 4241(a) &
4247(b) & (c), is warranted to determine whether he is
competent to stand trial. See United States v.
Gafford, No. 2:17cr14, 2017 WL 3784042, at *2 (M.D. Ala.
Aug. 31, 2017) (Thompson, J.) (the fact that defendant is
competent as to one factor does not necessarily mean he is
competent as to the other); see also United States v.
Rodman, 233 Fed.Appx. 320 (4th Cir. 2007) (recognizing
disjunctive nature of § 4241(a), and finding defendant
incompetent because he was unable to properly assist in his
defense, despite sufficient understanding of the charges
against him); United States v. Friedman,
366 F.3d 975 (9th Cir. 2004) (same); United States v.
Hemsi, 901 F.2d 293 (2d Cir. 1990) (upholding finding of
incompetency to stand trial, despite defendant's ability
to understand the nature of the charges against him, because
his courtroom behavior indicated he could not “assist
properly in his defense”). If the BOP finds Phaly is
mentally competent, the court asks that it address the
following additional four issues.
the January 31 hearing, Phaly's counsel orally confirmed
to the court that he is also concerned that, if Phaly suffers
from a mental disease or defect or limitation, that disease
or defect or limitation may have played a role in the
commission of the alleged offense. Therefore, Phaly's
counsel asked, and the court agrees, that any BOP
mental-health examination should, pursuant to 18 U.S.C.
§ 4242, address, if possible at this time, whether Phaly
was insane at the time of the offense. The government does
not oppose an evaluation for this purpose. This request does
not reflect any position by the court as to Phaly's guilt
MITIGATING SENTENCING FACTOR
is accused of engaging in sexual activity with a 14-year-old,
which included recording sexual acts with and receiving
sexually explicit text-messages from the minor. At the
January 31 hearing, defense counsel expressed concern that,
if Phaly suffers from an intellectual disability or other
mental disease or defect, his intellectual age (or, perhaps
in lay terms, his maturity level) may approximately equal, or
may even be lower than, that of the minor's, and that,
thus, while he may have been sane at the time of the offense,
his intellectual age may still be a mitigating sentencing
factor. At the January 31 hearing, defense asked that the BOP
include this assessment in its evaluation pursuant to 18
U.S.C. § 3552(b). See United States v. Mosley,
No. 1:10cr118, 2017 WL 4230221 *2 (M.D. Ala. Sept. 25, 2017)
(Thompson, J.) (“The court may order a study of the
defendant if it desires more information than is otherwise
available to it as a basis for determining the sentence to be
imposed the order must specify the additional information
that the court needs before determining the sentence to be
imposed. 18 U.S.C. § 3552(b).”) (internal
quotations omitted). The court believes that, if Phaly were
convicted, there would be “a compelling reason for the
study to be done by” the BOP. 18 U.S.C. § 3552(b).
this would be mitigating sentencing factor, the court hopes
that the BOP could address this factor now if possible, while
Phaly is in BOP custody. In other words, the court would like
to avoid having to recommit Phaly to the BOP for this
sentencing assessment should he be convicted. Again, this
request does not reflect any position by the court as to
Phaly's guilt or innocence.
government and defense counsel further ask that, if Phaly
does suffer from a mental disease, defect, or limitation and
should he be convicted, the BOP include in its evaluation its
recommendations for treatment for him during his supervised
release as part of his sentencing. Again, in the interest of
efficiency (that is, to avoid having to recommit Phaly to the
BOP should he be convicted), the court finds that there would
be “a compelling reason” for the BOP, pursuant to
18 U.S.C. § 3552(b), to include now in its evaluation
what treatment it would recommend under these circumstances.
And again, this request does not reflect any position by the
court as to Phaly's guilt or innocence.
OFFENDER RISK ASSESSMENT
at the January 31 hearing, defense counsel stated that,
because of the nature of the charges, he would like for the
BOP to do a “Sex Offender Risk Assessment” and
include in its mental-health evaluation Phaly's
likelihood to commit a sexual offense in the future. Again,
in the interest of efficiency (that is, to avoid having to
recommit Phaly to the BOP should he be convicted), the court
finds that there would be “a compelling reason”
for the BOP, pursuant to 18 U.S.C. § 3552(b), to include