United States v. Krebs

          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 ...