United States v. Brown

          OPINION AND ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE

         Defendant Brodrick Brown is before the court on a petition for revocation of his supervised release. The petition alleges that he has committed two violations of the conditions of his supervised release: (1) he possessed a firearm and (2) he committed a new offense, that is, he has been charged in state court with domestic violence in the third degree by way of harassing communications, in violation of 1975 Alabama Criminal Code §§ 13A-6-132 and 13A-11-8(b).

         Defense counsel filed a motion for Brown to receive a mental-health evaluation to determine his competency to participate in the revocation proceedings, as well his mental capacity at the time of the alleged violations. The court held a hearing on the motion, which is unopposed by the government, on September 17, 2019. For the reasons explained below, the court will order these and other mental-health evaluations, all to be conducted at Bureau of Prisons (BOP) mental-health facilities.

         A.

         A court may order a competency evaluation on a party’s motion, or on the court’s own motion, “at any time after the commencement of probation or supervised release and prior to the completion of the sentence” 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 of time to the custody of the Attorney General to be placed in a suitable BOP facility for this competency examination. See §§ 4241(b), 4247(b).

         On September 10, 2019, Brown was evaluated by forensic neuropsychologist Dr. Robert Shaffer, who determined that Brown suffers from a “neurocognitive disorder secondary to brain injury.” Motion for Competency Evaluation and Motion to Continue (doc. no. 229) at Exh. 1. Dr. Shaffer reports that Brown’s “racing thoughts and ... communication are not subject to voluntary control.” Id. Dr. Shaffer further opines that Brown “will be unable to assist in his defense” and “unable to communicate with counsel unless his mania is brought under control with medication.” Id.

         The court, therefore, has reasonable cause to believe that Brown is suffering from a mental disease or defect that renders him incompetent to continue with the revocation proceeding. The court will order him to be evaluated at a BOP mental-health facility, pursuant to 18 U.S.C. §§ 4241(b) and 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 § 4247. This report should include a description of the psychological and medical tests administered and their results; the examiner’s findings, diagnosis, and prognosis of Brown’s mental condition; and the examiner’s opinions as to whether, given the demands that may be made on Brown throughout these proceedings, he may currently 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).

         B.

         If, after this evaluation, the court were to find that Brown is incompetent to proceed, the court would then be required to commit him again to the custody of the Attorney General, and again he would need to be hospitalized for treatment in a suitable facility, though this time in order to determine whether there is a substantial probability that, in the foreseeable future, he will attain the capacity to permit the revocation proceedings against him to go forward. See 18 U.S.C. § 4241(d)(1). The court wishes to avoid the further delay and inconvenience to the parties, and to the court, of another potential commitment, including the extra time required to transport Brown from the BOP facility back to this district and then back to the facility again. Thus, the court will order that, if the BOP examiner finds Brown incompetent, the examiner should, if possible and practicable as allowed by the applicable statutory time constraints, see 18 U.S.C. § 4241(b), and without an additional court order, immediately conduct a restoration evaluation pursuant to § 4241(d)(1) to determine if there is a substantial probability that, in the foreseeable future, Brown will regain competency. However, if the evaluator concludes that Brown is incompetent to proceed but is unable, for whatever reason, to reach the related issue of restoration, the BOP should, if feasible, still hold Brown at the evaluation site so that a competency hearing can promptly be held by video-conferencing. This will allow the court to order a restoration evaluation, if appropriate, without first transporting Brown back to the jail in the local district.

         C.

         Defense counsel has also asked for an examination under U.S.C. § 4242 of Brown’s mental competency at the time of the offense.

         Because of the circumstances presented in Brown’s case, including the results of the preliminary evaluation by Dr. Shaffer, the court finds it appropriate to order this evaluation as well. Should Brown be determined mentally competent to proceed, it is more convenient for all parties to make the insanity determination now, rather than having to recommit and send him off again for the determination.

         Accordingly, the court will order that, if during the course of Brown’s competency commitment, his mental condition permits the BOP examiners to make a determination of whether he was insane at the time of the charged violations, the examiners shall make such a determination. To the extent practicable, the insanity ...