United States District Court, D. Arizona
HONORABLE JENNIFER ZIPPS UNITED STATES DISTRICT JUDGE.
before the Court is Magistrate Judge Jacqueline M.
Rateau's Report and Recommendation (R&R) recommending
that the District Court find that Mr. Krebs is competent to
stand trial. (Doc. 70.) Mr. Krebs has filed an objection.
(Doc. 71.) After independent review of the parties'
briefing, as well as the reports, hearing testimony, and
exhibits, the Court will overrule Defendant's objection
and adopt Judge Rateau's R&R.
reviewing a Magistrate Judge's Report and Recommendation,
this Court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1).
“[T]he district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not otherwise.” United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis omitted). District courts are not required to
conduct “any review at all . . . of any issue that is
not the subject of an objection.” Thomas v.
Arn, 474 U.S. 140, 149 (1985). See also 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72;
Reyna-Tapia, 328 F.3d at 1121; Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).
filed a Motion to Determine Competency following his
indictment for one count of Armed Bank Robbery in violation
of 18 U.S.C. § 2113(a) and (d). A defendant may be
deemed competent to stand trial if “he has sufficient
present ability to consult with his lawyer with a reasonable
degree of understanding, ” and “has a rational as
well as factual understanding of the proceedings against
him.” Dusky v. United States, 362 U.S. 402,
402 (1960) (per curiam); Chavez v. United States,
656 F.2d 512, 518 (9th Cir. 1981). “Whether a defendant
is capable of understanding the proceedings and assisting
counsel is dependant upon evidence of the defendant's
irrational behavior, his demeanor in court, and any prior
medical opinions on his competence.” United States
v. Gastelum-Almeida, 298 F.3d 1167, 1171 (9th Cir. 2002)
(quoting Miller v. Stainer, 108 F.3d 1109, 1112 (9th
Cir. 1997)). The government has the burden of demonstrating
by a preponderance of the evidence that a defendant is
competent. United States v. Hoskie, 950 F.2d 1388,
1392 (9th Cir. 1991).
Court agrees that the Government has demonstrated by a
preponderance of the evidence that the Defendant is competent
and can understand the nature and consequences of the
proceedings, and that he is also capable of assisting
counsel. The substantial evidence supporting this conclusion
is set forth in Judge Rateau's thorough and carefully
considered report. In brief, Defendant's conversations
with the FBI shortly after arrest and with three doctors over
the months that followed demonstrate that he has an
understanding of the charge against him, that the charge is a
felony, what his legal options for responding to the charge
are, and the potential consequences of the proceedings.
Defendant likewise possesses a sufficient present ability to
consult with his lawyer and participate in his defense, as
set forth in Dr. Cochrane's and Dr. Johnson's
findings, and as corroborated by his courtroom testimony
provided during his competency hearing.
independent review of the record, the Court will overrule
Defendant's objections-arguments which were previously
considered and rejected by the Magistrate Judge.
Defendant's statements to the FBI, his hearing testimony,
Dr. Cochrane's opinion, and the medical testing done at
the Federal Medical Center in Butner, North Carolina, all
undermine Defendant's first argument that his
“potential” medical conditions are severe enough
to raise sufficient doubt as to whether he is currently
suffering from a degenerative mental illness. As found by Dr.
Cochrane-who had the opportunity to observe Defendant over
the course of several months-Defendant exhibited a much
higher level of functioning than a person with dementia or
severe cognitive impairment would ordinarily present.
Defendant likewise demonstrated strong recall and cognitive
ability during his interviews, and Defendant's MRI brain
imaging and other lab work did not show any clear evidence of
organic impairment. Although Dr. Cochrane acknowledged
certain deficits presented by Defendant, he nonetheless
concluded that those deficits are not incapacitating, to the
extent they are genuine.
Defendant's trial testimony and FBI interview strongly
refute his contention that the Government has presented
insufficient evidence to meet its burden. Defendant wrote a
narrative that he read into the record at the June 10
hearing. The narrative was cogent and relevant. In it,
Defendant criticized his evaluation at Butner, challenged the
methodology used in the evaluation, refuted Dr.
Cochrane's conclusions with explanatory facts, and
detailed Defendant's difficulties in consulting with his
attorney in confidence in the courtroom due to hearing
difficulties. Defendant's descriptions and vocabulary
were sophisticated. For example, Defendant denied
“prevaricating” and referred to the
“plethora of press coverage.” He noted that he
was college educated. (See Doc. 69, pg. 13
(“There was one scheduled written test for Mr. Krebs in
the six months he was a resident at Butner mental hospital,
it was a word definition multiple choice, quite simple for
Mr. Krebs, who has a college education.”).) He
recounted specific details of certain events in his life-some
in the past, and some that had occurred more recently.
counsel emphasizes that Defendant's interview with the
FBI over a year and a half ago “has little probative
value as to his current state of mind given that there is a
possibility he is currently suffering from a degenerative
mental illness.” But Defendant's FBI interview was
not considered in isolation. Dr. Cochrane also considered
Defendant's personal history, including psychological
evaluations previously conducted by Drs. Menchola and
Johnson, Defendant's criminal record, and Defendant's
own recitation of his history. Importantly, Dr. Cochrane
evaluated Defendant over a period of almost five months, from
October 2018 to February 2019, and Dr. Cochrane considered
his own personal observations alongside Defendant's past
performance with the FBI in reaching his conclusion for the
Court. Judge Rateau considered the same information taken
into account by Dr. Cochrane, in addition to Dr.
Cochrane's testimony, and Judge Rateau heard and observed
Defendant testify on June 10, 2019.
Court likewise overrules Defendant's objection contesting
the finding that Defendant is malingering. Dr. Cochrane
acknowledged that secondary gain is necessary to support a
diagnosis of malingering, but reasonably concluded that
Defendant's malingering appeared motivated by a desire to
avoid prosecution. Dr. Cochrane adequately explained how he
eliminated other possible explanations to arrive at that
conclusion. Judge Rateau also considered the inconsistency
between Defendant's initial statement to the FBI that he
robbed the bank to go to jail and Dr. Cochrane's
conclusion that Defendant was malingering to avoid
prosecution. The fact that Defendant has not consistently
articulated his motivations does not necessarily undermine
the conclusion that Defendant is malingering, motivated by a
desire to avoid prosecution. Defendant's history supports
such a conclusion, and a person's motivations may change
over time and circumstances. For instance, a person in
Defendant's position might plausibly change his mind
about the desirability of returning to prison once he was in
fact returned to custody.
testimony, his three expert evaluations, his personal
history, and his interview with the FBI, all support the
conclusion that the Government has demonstrated by a
preponderance of the evidence that Defendant is competent to
ORDERED that the Report and Recommendation (Doc. 70) is