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United States v. Santiago

United States District Court, D. Arizona

March 14, 2018

United States of America, Plaintiff,
v.
Barabas Santiago, Defendant.

          REPORT AND RECOMMENDATION RE: COMPETENCE

          HONORABLE LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE

         The complaint in this case alleges that on 7/30/16, Defendant Barabas Santiago and three women applied for admission into the United States from Mexico at the DeConcini Port of Entry in Nogales, AZ. There were in a vehicle and were referred to secondary inspection. The women were alleged to have methamphetamine hidden in and on their bodies. Mr. Santiago was held for overnight observation at a hospital and then returned to the Port of Entry. On 7/31/16, pursuant to a federal warrant he underwent an x-ray and CT scan which detected a foreign object in his rectal cavity. On 8/1/16 two objects allegedly passed from his body. The contents of a condom and another object tested positive for heroin, weighing 0.18 kilograms. The defendants were indicted on 8/24/16. Mr. Santiago was charge in Counts 1, 2, 4 and 5 with Conspiracy to Possess with Intent to Distribute Heroin and Methamphetamine, Possession with intent to Distribute Heroin, Conspiracy to Import Heroin and Methamphetamine, and Importation of Heroin, in violation of 21U.S.C. §§ 846, 841(a)(1) and (b)(1)(C), 963, 952(a) and 960(a)(1) and (b)(3).

         On 9/29/16 Mr. Santiago was ordered released on conditions, to include residence at a residential drug treatment program. On 10/10/16 a petition was filed to revoke the release based on allegations that Mr. Santiago left the facility without permission with his whereabouts unknown. He was arrested and taken back into custody on 10/11/16.

         Two co-defendants pled guilty. One was sentenced to 12 months and a day. (Doc. 156) Another received a sentence of 24 months. (Doc. 193) The indictment against the third co-defendant was dismissed on 2/24/17. (Doc.138).

         Procedural History

         At the request of counsel for the defendant, Barry Morenz, M.D. evaluated Mr. Santiago on 11/22/16 to determine his competence to stand trial. Dr. Morenz's report (Defendant's Ex. 17, Doc. 113), memorializes his conclusion that Mr. Santiago is not competent to stand trial because “he is too emotionally disturbed and psychotic to be able to rationally or properly assist his attorney in his own defense”, “(assuming that he is not significantly exaggerating his symptoms)”. Defendant filed under seal Dr. Morenz's evaluation, as well as prior evaluations by Brenda Sparrold, Ph.D. (Defendant's Ex. 20, Doc. 113) and Maria-Luanna Bozzolo, Ph.D. (Defendant's Ex. 19, Doc. 113), which Dr. Morenz reviewed as part of his evaluation.

         Dr. Sparrold's report documents an evaluation of Mr. Santiago that she conducted on 2/3/16 pertaining to prior State of Arizona charges. She concluded that Mr. Santiago was not competent at that time to participate in his own defense. She stated that he had “a fair understanding of the legal process” but could not rationally participate in his legal proceedings. She administered a screening test which indicated that he was not malingering. She diagnosed him with schizophrenia based on his reports of hallucinations and delusions, observations that he had difficulties with cognitive function and a history of behavioral disturbance.

         Mr. Santiago participated in an outpatient restoration to competency program between 12/4/15 and 1/29/16, after Pima County Superior Court Judge Danelle Liwski found Mr. Santiago not competent to stand trial. Dr. Buzzolo completed a report at the conclusion of the program. She referred to his diagnosis of schizophrenia and concluded that he had “very rigid delusional ideations” including his religious perceptions. She found that he was not malingering. It was her opinion, “to a reasonable degree of psychological certainty that Mr. Santiago is not competent to proceed and engage in legal proceedings on the charges against him.” She also stated that, pursuant to the Arizona Revised Statutes § 13-4512(I), “there is no substantial probability that Mr. Santiago is capable of regaining competency within twenty-one months after the date of the original finding of incompetency.”

         On 1/20/17, in the present case, the government filed a motion to determine competency and to commit the defendant to the custody of the Attorney General for four months. (Doc. 119) It requested that the defendant undergo a complete forensic evaluation at a Federal Medical Center (FMC) in order to rule out possible malingering and to determine whether he was competent and/or restorable in the foreseeable future. A hearing was held on 1/24/17. The Court found the defendant not competent to proceed and granted the government's motion. Defendant Santiago was designated to the Federal Medical Center in Springfield, MO, arriving on 3/9/17.

         Warden Linda Sanders of the U.S. Medical Center for Federal Prisoners in Springfield, MO sent a letter to the Court, dated 7/17/17, wherein she requested 90 days, beyond the four months ordered by the Court, to complete the evaluation. Attached to the warden's letter there was a Treatment Summary and Extension Request from Allison Schenk, Ph.D. Dr. Schenk concluded that “Mr. Santiago presents as somewhat of a diagnostic conundrum.” She stated that he did not meet the diagnostic criteria for a psychotic disorder but he had unusual religious beliefs, which impacted “his decisions and conceptualization of his criminal case.” She wasn't sure whether he had “genuine delusional beliefs”, which could be treated with antipsychotic medication, or if he was exaggerating his beliefs to avoid prosecution. She also considered the possibility that he had extreme, unusual or unconventional religious beliefs that are not grounded in mental illness. Dr. Schenk requested the extension to assess the veracity of Mr. Santiago's beliefs and to clarify his diagnosis, if any. She stated that if his belief system is genuinely delusional, there could be a discussion regarding medication.

         On 9/19/17 a status hearing was conducted. The defendant appeared via video conference from the Federal Medical Center, as did Dr. Schenk. Dr. Schenck testified that Mr. Santiago had been at the institution 70 days beyond the original four months ordered by the Court and that she and the staff had observed his behavior for six and a half months. (Defendant's Ex. 14 -Tr. 9/19/17, p. 27, lns. 8-11). She acknowledged that if she were able to make a diagnosis, that would help clarify what needed to be done to accomplish restoration. (Id. at lns16-19). In other words, no diagnosis had been made thus far. The Court granted the 90 day extension, allowing an additional 20 days from the date of the status conference, for Dr. Schenk to complete the evaluation.

         Dr. Schenk prepared a forensic psychological report on 10/10/17, three weeks after the status hearing. The report concluded that Mr. Santiago was competent to proceed. She opined that his spiritual beliefs were “unconventional” and might appear delusional but he does not have a mental disease or defect. She stated that “no changes in his competency-related abilities are expected”, although his decisions might impact the defense options and make it “much more challenging” for him to work with his attorney. The report states that Mr. Santiago would follow God's advice over his attorney's advice, which will likely have a negative impact on his ability to assist his attorney in his defense but his eccentric spiritual beliefs are not the result of mental illness.

         Upon return to the District of Arizona, Mr. Santiago was again evaluated by Dr. Morenz. A supplemental psychiatric evaluation dated 2/15/18 was prepared and filed under seal. (Defendant's Ex. 12, Doc. 204) Dr. Morenz reviewed the medical records, reports and letters from Dr. Schenk and the Federal Medical Center. He also interviewed Mr. Santiago's brother, Samuel Santiego. He concluded that “Mr. Santiago is suffering from an unspecified psychotic disorder and major depression. His psychotic symptoms have been persistent for a long period of time, perhaps years.” He “has a range of religious delusions.” Dr. Morenz explained that although Mr. Santiago denies auditory hallucinations it is unclear “whether his communications with God represent some measure of auditory hallucinations or not.” Dr. Morenz opined that the depression and persistent delusional religious beliefs prevent Mr. Santiago from being able to “rationally and meaningfully assist his attorney in his own defense.” He agreed that Mr. Santiago has a basic understanding of the legal matters but concluded that his illness impacts “his ability to make informed legal decisions.” As an example, Dr. Morenz referred to the defendant's decision not to accept the plea agreement, contrary to his own interest, because God told him not to accept.

         Dr. Morenz recommends that Mr. Santiago try antidepressant medication in combination with antipsychotic medication and suggests that Mr. Santiago not be permitted to socially isolate himself and have access to regular therapy with professionals. Those interventions create “a substantial likelihood ...


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