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United States v. Pfeifer

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

March 8, 2018

UNITED STATES OF AMERICA
v.
DERYKE MATTHEW PFEIFER

          OPINION AND ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE

         In this criminal case, the court previously determined that defendant Deryke Matthew Pfeifer is mentally incompetent to stand trial, and allowed the federal Bureau of Prisons (BOP) more than a year to attempt to restore his competency. The question now is whether he remains incompetent, and, if so, whether the court should order a psychiatric examination and report, pursuant to 18 U.S.C. § 4246(b), of whether he “is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another.” 18 U.S.C. § 4246(a)-(b).

         Based on the evidence presented in the record and at an evidentiary hearing on March 5, 2018, the court finds that the record adequately reflects that Pfeifer cannot be restored to mental competency, that a ‘dangerousness assessment' is appropriate at this time, and that the court's previous Sell order for involuntary medication should be dissolved.

         I. Procedural Background

         A superseding indictment charges that Pfeifer “did knowingly and willfully make a threat to take the life of, to kidnap, and to inflict bodily harm upon the President of the United States of America, ” see 18 U.S.C. § 871(a), and that he was a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). Superseding Indictment (doc. no. 185). After an evidentiary hearing, the court concluded that Pfeifer 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 and to assist properly in his defense. See 18 U.S.C. § 4241(d); see also United States v. Pfeifer, 121 F.Supp.3d 1255, 1256-58 (M.D. Ala. 2015) (Thompson, J.) (outlining the court's previous rulings in this case). After Pfeifer's doctors concluded that he is not likely to regain capacity without the benefit of antipsychotic or other medication and after Pfeifer had refused to take such medication, this court concluded in late 2015, after a two-day hearing pursuant to Sell v. United States, 539 U.S. 166 (2003), that he should be medicated over his objection. See United States v. Pfeifer, 140 F.Supp.3d 1271, 1274 (M.D. Ala. 2015) (Thompson, J.), aff'd, 661 F. App'x 618 (11th Cir. 2016), cert. denied, 137 S.Ct. 412 (2016). Because the court stayed its Sell order pending appeal, Pfeifer was not committed to a BOP facility for involuntary medication until late 2016. See Letter from BOP (doc. no. 154).

         After holding an on-the-record conference call in April 2017 and an evidentiary hearing in October 2017, the court granted two 120-day extensions based on testimony from Pfeifer's treatment team--including forensic psychologist Allissa Marquez, Ph.D., and psychiatrist Logan Graddy, M.D.--that he had made some progress, and that they remained “hopeful” that he would be restored during the additional treatment period. See Opinion and Order (doc. no. 179); Opinion and Order (doc. no. 164).

         At the end of the second extension period, BOP submitted a psychiatric report opining that Pfeifer remained incompetent to proceed to trial, and requesting a third 120-day extension for restoration treatment. See Psychiatric Report (doc. no. 191). The request was set for a hearing on March 5, 2018. However, prior to the hearing, the government moved to withdraw the request for an extension, based on its revised conclusion that Pfeifer could not be restored within the requested treatment period. See Motion to Withdraw Motion for Extension (doc. no. 201). The government also moved to hold a hearing on whether a dangerousness assessment should be ordered pursuant to 18 U.S.C. § 4246(b). See Motion for Evidentiary Hearing (doc. no. 203). Because defense counsel and Pfeifer's guardian ad litem had already made arrangements to travel to the BOP facility where Pfeifer was being examined, to participate in the hearing by videoconferencing, the court decided, in the interest of efficiency, to hear evidence on March 5 both on whether Pfeifer could be restored and whether to order the dangerousness assessment.

         II. Discussion

         A. Legal Standard

         When a defendant has been found incompetent to stand trial, the court is required to commit him to the custody of BOP for “a reasonable period of time, not to exceed four months, ” for competency restoration treatment and a determination of 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). An additional period of hospitalization for treatment may be granted “if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the proceedings to go forward.” 18 U.S.C. § 4241(d)(2)(A).

         When a court finds that a defendant remains incompetent to proceed, and that there is not a substantial probability that the he will attain competency within an additional treatment period, the court lacks authority under 18 U.S.C. § 4241 to continue to detain him for competency restoration. Because the defendant lacks the capacity to proceed, the government at that point may either release him or seek to commit him ‘civilly' pursuant to 18 U.S.C. § 4246(a). See United States v. Comstock, 560 U.S. 126, 141 (2010) (referring to a commitment[1] under § 4246 as a “civil commitment”).

         The statute allows the government to institute a hearing on this issue of ‘dangerousness, ' “If the director of a facility in which a person is hospitalized certifies that a person in the custody of the Bureau of Prisons ... who has been committed to the custody of the Attorney General pursuant to section 4241(d) [for competency restoration] ..., is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, and that suitable arrangements for State custody and care of the person are not available.”[2] 18 U.S.C. § 4246(a). The director must then transmit that certificate “to the clerk of the court for the district in which the person is confined, ” with copies to the parties, in response to which the court “shall” order a dangerousness hearing. Id.

         If, after the dangerous hearing, the court finds by clear and convincing evidence that the defendant “is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall commit the person to the custody of the Attorney General.” Id. § 4246(d). If the court does not find that the defendant is dangerous, he must be released. If there is a finding of dangerousness, however, the Attorney General is then to “make all reasonable efforts” to cause an appropriate State official to take custody of the defendant; if unsuccessful, the Attorney General is to “hospitalize the person for treatment in a suitable facility, ” until either the State assumes responsibility, or until the defendant's condition has improved such that he can be released. Id.

         More to the point at this stage in this case, subsection (b) of § 4246 allows the court to order an evaluation in aid of the dangerousness determination: “Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court.” Id. ยง 4246(b). A defendant may be committed to federal custody for such an evaluation for up to 45 ...


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