United States District Court, D. Arizona
REPORT & RECOMMENDATION (PURSUANT TO: 18 U.S.C.
§ 4241) (DEFENDANT IN CUSTODY)
Honorable Jacqueline M. Rateau United States Magistrate
Judge.
On
February 21, 2018, the Defendant was indicted and charged
with one count of Armed Bank Robbery in violation of 18
U.S.C. § 2113(a) and (d). DOC 8.[1] Before the Court is
Defendant's Motion to Determine Competency. DOC 27. The
Court has considered the moving papers, reports, and hearing
testimony, and recommends that the District Court find that
the Defendant is competent to stand trial and to assist his
counsel.
I.
History of the Case
A.
Complaint (DOC 1)
The
Complaint, which was filed on January 18, 2018, alleges that
on January 12, 2018, the Defendant entered the Pyramid
Federal Credit Union in Tucson carrying a black messenger
bag. He approached the bank teller and pulled out a smaller
black bag from the larger messenger bag and put it on the
teller's counter. The Defendant demanded that the teller
give him all the money and not sound any alarms. He placed a
black handgun (later determined to be a BB gun) on top of the
small black bag with the handgun pointed at the bank
teller's torso. The teller gave him $4, 259.50. The
Defendant then moved to the next bank teller and did the
same. That teller gave him $4, 125.34. In total, the
Defendant is charged with robbing $8, 384.84. He left the
bank and was arrested the following day by the Tucson Police
Department.
B.
Videotaped Post-Arrest Statement (EXS 7-8)
The
Defendant was interviewed by FBI Special Agents Keefe and
Livingston on January 23, 2018. EX 7.[2] The interview lasted
approximately 45 minutes. EX 8. It began with the Defendant
providing detailed information about himself, including the
spelling of his middle name, his date of birth, the
approximate No. of people in his home town, his mailing
address, his residence address and his social security
number. EX 8, 3- 6. He spoke in detail about prison life,
where he served time and how he was transported to the
various prisons. EX 8, 8-11. He recounted that he had spent
17 years at ADC (the Arizona Department of Corrections) where
he taught math and ran the legal library. EX 8, 8. He
described his physical ailments and his hospital stay (EX 8
10-12) and that he had been diagnosed with onset
Alzheimer's (EX 8, 30). According to the Defendant, he
had been having trouble with it for ten years although he was
smart enough to camouflage it, but it was getting
exponentially worse. EX 8, 30. He said he didn't
recognize people and could not remember names. EX 8, 31. He
was, however, able to meticulously explain how he planned and
carried out the robbery, what he was wearing and what he did
before and after leaving the bank. EX 8, 12-29.
Interestingly,
the Defendant stated that he didn't wear a disguise or a
mask during the robbery because he wanted to get caught. EX
8, 29. He wanted to go back to prison where he didn't
have to contend with what's going on in the outside world
with cell phones and everything else. EX 8, 9-30. He also
admitted that the reason he committed the robbery was because
he needed money as his $800 per month social security was not
much to live on. EX 8, 13. That was why he didn't change
his name or appearance. EX 8, 34. He wanted to find a niche
as he didn't recognize people. EX 8, 30. He explained
that the last seven months were the worst in his life as he
tried to adjust to life on the outside. EX 8, 34.
C.
Pretrial Report (DOC 5)
The
Defendant's felony conviction record is set out in the
pretrial report that was prepared shortly after his arrest.
• In 1966, when the Defendant was 24 years old, he was
convicted in Chicago of bank embezzlement and was sentenced
to three years in prison;
• In 1967, at age 24, he was convicted in New York of
felony grand larceny and sentenced to one year in prison;
• In 1973, at age of 31, he was convicted in Canada of
extortion and sentenced to 4 years in prison;
• In 1980, at age of 38, he was convicted in Tucson of
theft and sentenced to 20 years in prison;
• In 1981, at age 39, he was convicted in Florida of
robbery and kidnapping and sentenced to 75 years in prison;
and
• In 1988, at age 46, he was convicted in Tucson of
robbery and sentenced to 28 years in prison.
The
Defendant was released from prison on June 1, 2017. He was
paroled to Florida and absconded in November of 2017. He was
charged in Tucson with armed bank robbery on January 18,
2019.
D.
Tucson Court Matters
On July
24, 2018, defense counsel filed a Motion to Determine
Competency. DOC 27. On March 28, 2018, Defendant was
evaluated by a local clinical neuropsychologist, Marisa
Menchola, Ph.D. EX 5. In her report dated July 12, 2018, Dr.
Menchola concluded that the Defendant was not competent to
stand trial due to a major neurocognitive disorder (dementia)
and that the Defendant was not likely restorable to
competence.
On
August 15, 2018, Defendant was evaluated by a local medical
psychiatrist, Bradley Johnson, M.D. EX 6. In his report dated
September 3, 2018, Dr. Johnson concluded that the Defendant
was competent to stand trial and that his presentation was
more likely consistent with malingering.
At a
Status Conference on September 13, 2018, both parties agreed
that an additional evaluation was needed in a medical
facility where the Defendant could be evaluated over a longer
period. DOC 40. Defendant was hospitalized at the Federal
Medical Center in Butner, North Carolina where he was
evaluated by a forensic psychologist, Robert Cochrane, Psy.D.
EX 2.
In his
report dated March 11, 2019, Dr. Cochrane concluded that
there was no convincing evidence that the Defendant suffers
from a mental disorder that would render him mentally
incompetent. He also found that the Defendant was malingering
and noted that his personal and criminal history was more
consistent with a finding of antisocial personality disorder.
Competency
hearings were conducted on May 7, 2019, May 24, 2019, and
June 10, 2019. DOCs 55, 59, 66. Defendant was present and
represented by counsel. Seven exhibits were admitted at the
first hearing. One exhibit was admitted at the second
hearing. One witness, Dr. Cochrane, testified via video
conference at the first two hearings. The Defendant testified
at the last hearing.[3] The attorneys filed supplemental
memorandum on June 7, 2019 (DOCs 64, 65) and presented oral
argument at the hearing on June 10, 2019.
II.
Forensic Evaluations
A.
Dr. Menchola (EX 5)
Defendant
was seen on March 28, 2018 by Dr. Menchola. She described the
Defendant as alert but exhibiting difficulties with his
speech. He spoke very slowly, with very long latencies
between the question and his answer, and for the most part,
provided very short answers. He was however, able to provide
many details about his social, occupational, medical,
substance abuse and psychological history. As the interview
progressed, Defendant was less cooperative. He refused to
answer many questions relating to his charges. Dr. Menchola
noted that her assessment was limited because of that.
Much of
the Defendant's medical and psychological history was
self-reported. Notes from a 2010 document revealed that the
Defendant complained of memory deficits, word-finding ability
and concentration problems. He was worried about dementia and
claimed to have been diagnosed with the onset of
Alzheimer's. He reported a significant mental health
family history. He stated that his grandfather, father and
father's twin brother had Alzheimer's. He said his
mother and sister died by suicide and another sister was
disabled due to a suicide attempt. Records from 2003 to 2012
included a diagnosis of major depression, bipolar disorder
and antisocial personality disorder. Records also described
the Defendant as having a history of excessive mood swings,
violence and feigning/manipulation but no psychosis.
With
respect to the Defendant's factual knowledge of the
charges and the legal system, Dr. Menchola explained that the
Defendant knew that he was charged with bank robbery and that
it was a felony. He knew that felonies are more serious that
misdemeanors. He knew his plea options and the role of a
judge, jury and attorney. The Defendant did not express any
delusional beliefs or other disruptive behavioral symptoms
that would interfere with his ability to cooperate with
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