United States v. Quintero

          ORDER

          Honorable James A. Soto United States District Judge.

         Pending before the Court is Defendant's Objection to Magistrate Judge's Order of Commitment for Competency Restoration Treatment (Doc. 89).^[1] On May 15, 2019, the Court heard oral arguments from both parties and took the matter under advisement. (Doc. 102.) The Court also gave the parties additional time to file supplemental pleadings. (Doc. 102.) Defendant filed a supplement (Doc. 103). Based on the following reasoning, Defendant's objection is overruled.

         I. LEGAL STANDARD

         This Court will only modify or set aside an order relating to a nondispositive matter referred to a magistrate judge if it is “contrary to the law or clearly erroneous.” Fed. R. Crim. P. 59(a);^[2] see 28 U.S.C. § 636(b)(1)(A). “Contrary to the law” signifies that this Court will conduct a de novo review of the magistrate judge's legal reasoning. Morgal v. Maricopa Cty. Bd. of Supervisors, 284 F.R.D. 452, 458-59 (D. Ariz. 2012); Jensen v. Solvay Chemicals, Inc., 520 F.Supp.2d 1349, 1351-52 (D. Wyo. 2007). “A finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

         II. BACKGROUND

         Sonia Quintero, Defendant, is charged with conspiracy to possess with the intent to distribute marijuana and possession with intent to distribute marijuana. (Doc. 18.) On November 27, 2017, Defendant was released on her own recognizance. (Doc. 16.) On October 16, 2018, ^[3] Defendant filed a motion for a competency examination. (Doc. 68.) On February 21, 2019, Defendant filed a Notice of Objection to Confinement Pursuant to 18 U.S.C. § 4241. (Doc. 74.) On February 28, 2019, Magistrate Judge Bernardo P. Velasco held an evidentiary hearing and found that Defendant was not competent. (Doc. 75.) Magistrate Judge Velasco provided the parties with additional time to file briefing regarding funding for outpatient restoration in Arizona and reassigned this case to Magistrate Judge Leslie A. Bowman. (Doc. 75.) Defendant filed an addendum to her previous objection (Doc. 77), which explained that there was an out-of-custody restoration program willing to provide treatment to Defendant and that the Federal Public Defender would pay for the treatment, in addition to handling the logistics. The Government filed a response to both Defendant's objection and the addendum. (Doc. 78.) On March 19, 2019, Magistrate Judge Bowman held a hearing regarding out of custody restoration and took the matter under advisement. (Doc. 80.)

         On April 19, 2019, Magistrate Judge Bowman filed an order addressing Defendant's arguments. (Doc. 87.) Magistrate Judge Bowman ordered in custody restoration. (Doc. 87.) On April 24, 2019, Defendant filed Objection to Magistrate Judge's Order of Confinement for Competency Restoration Treatment (Doc. 89.)

         III. ANALYSIS

         Defendant raises the following legal arguments in furtherance of out-of-custody restoration: (1) 18 U.S.C. § 4241(d) does not require inpatient confinement for competency restoration based on the statutory language, (2) mandatory in custody restoration violates Section 504 of the Rehabilitation Act, (3) the current policies of the Attorney General and the Bureau of Prisons are not consistent with § 4241(d) and the Rehabilitation Act and therefore violate the United States Constitution, (4) the Bureau of Prisons medical centers are not suitable to meet Defendant's needs, (5) the Government has not shown that the available out-of-custody restoration programs are inadequate, (6) mandatory custodial restoration violates procedural due process, (7) mandatory custodial restoration violates substantive due process, (8) mandatory custodial restoration violates equal protection, (9) mandatory custodial restoration violates a hybrid of due process and equal protection, and (10) mandatory custodial restoration violates the Eighth Amendment prohibition against excessive bail. (Docs. 74, 97, 101, 103.) The Court will address each argument in turn.

         A. 18 U.S.C. § 4241(d) Is Unambiguous and Does Not Provide the Court with Discretion.

         Defendant argues that the statute can be read to require individualized determinations of the least restrictive means of accomplishing restoration. Defendant attempts to broaden the definition of custody and hospitalization within § 4241 by referencing 42 U.S.C. § 1395, et. seq. (the definition of hospitalization within the Medicare context may include outpatient programs) and 28 U.S.C. § 2255 (defining custody for federal habeas to include supervised release into the community). She also points to the Bail Reform Act, which specifies that custody of the Attorney General shall mean confinement in a correctional facility. Defendant interprets the difference between the Bail Reform Act and § 4241, which states “the court shall commit the defendant to the custody of the Attorney General” as inherently resting authority within the Court to make an individualized determination as to what that custody will be. This argument hinges on the implication that the current reading, which requires automatic inpatient hospitalization, conflicts with due process, equal protection, the Eighth Amendment, and the Rehabilitation Act and that there is another plausible reading of the statute that would not conflict. See Clark v. Martinez, 543 U.S. 371, 380-81 (2005) (explaining that “when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail-whether or not those constitutional problems pertain to the particular litigant before the Court.”). Accordingly, the best place to start is to determine if there is another plausible reading of the statute.

         The question before the Court is not if the Attorney General can send Defendant to an outpatient program, rather the issue is if the statute can be read as allowing the Court to require the Attorney General to send Defendant to an outpatient program. The statute does not provide authority for the Court to order out-of-custody restoration.

         Courts have clearly understood and interpreted the statute as requiring Courts to order custody in the matter of confinement. United States v. Strong, 489 F.3d 1055, 1057 (9th Cir. 2007) (Strong argued that the statute “require[d] mandatory confinement without giving the district court an opportunity to assess a defendant's individualized circumstances.”) (emphasis added); see United States v. Magassouba, 544 F.3d 387, 393 (2d Cir. 2008) (“If the district court makes a preliminary finding of incompetence, the second step of the statutory scheme-at issue in this case-mandates the defendant's custodial hospitalization for evaluation and possible treatment.”) (emphasis added); United States v. Ferro, 321 F.3d 756, 751 (8th Cir. 2003) (finding that “a district court is required to commit the defendant to the custody of the Attorney General for a reasonable period of time . . . .” when medical experts have determined that “there is no current medical procedure capable of improving [defendant's] higher cognitive functioning.”) (emphasis added); United States v. Donofrio, 896 F.2d 1301, 1302 (11th Cir. 1990) (finding that the “the statute is mandatory and that the district court did not have the authority to circumvent the hospitalization.”); United States v. Shawar, 865 F.2d 856, 860-61 (7th Cir. 1989) (comparing the discretion provided by 18 U.S.C. § 4247(b) when finding a defendant incompetent with the lack of discretion after a defendant has been found incompetent in 18 U.S.C. § 4241(d)).

         The discretion of what hospital or facility will be utilized for restoration determination does not rest with the Court. Congress left this discretion to the Attorney General. This is particularly clear when examining 18 U.S.C. § 4247(b), which allows courts to designate the examiner or examiners, if it finds multiple examiners would be appropriate, and allows courts to “commit the person to be examined.” There is no such discretion once competency has been determined in 18 U.S.C. § 4241(d). This difference in the two subsections indicates that if Congress desired to designate the discretion of type of facility and choice of facility with the courts that Congress would have. Instead, Congress gave that discretion to the Attorney General. Section 4241(d) gives the Attorney General the responsibility to place a defendant in a “suitable facility.” Further, 18 U.S.C. § 4247(i) states that “[t]he Attorney General may contract with a State, a political subdivision, a locality, or a private agency for the confinement, hospitalization, care, or treatment of, or the provision of services to, a person committed to his custody pursuant to this chapter.” This subsection clearly does not require the Attorney General to contract with private agencies; it merely affords the Attorney General the option. This subsection precludes the Court to act as Defendant wishes, as the discretion rests with the Attorney General. Congress made their intentions clear.

         Based on the information before the Court, the statute is not ambiguous. The Court does not have authority to order the Attorney General to hospitalize Defendant in an outpatient restoration program. Accordingly, Defendant's argument that the Court should interpret the statute to avoid the constitutional issues fails.

         B. Rehabilitation Act

         Defendant argues that mandatory custodial restoration violates the Rehabilitation Act, 29 U.S.C. § 794, ^[4] and the implementing regulations from the Department of Justice. The Government argues that Defendant has not been designated as disabled within the Rehabilitation Act and that this proceeding is not appropriate for such a determination.

         Defendant makes a facial challenge to § 4241(d) and an as-applied challenge. The Court does not find that the facial challenge has merit. Section 4247(a)(2) dictates that the “suitable facility” designation considers the “characteristics of the defendant.” Combined with the discretion of the Attorney General to “contract with a state, a political subdivision, a locality, or a private agency for the confinement, hospitalization, care, or treatment of, or the provision of services to, a person committed to his custody” provided it § 4247(i), it is clear that the Insanity Defense Reform Act and the Rehabilitation Act are able to apply together, if they must. Remaining is the as-applied challenge.

         The as-applied challenge is not appropriate in this proceeding. A criminal case is not usually the proper setting to exercise civil statutory rights, unless a particular remedy is available. The Rehabilitation Act provides for a private right of action. 29 U.S.C. § 794a(a)(2); Barnes v. Gorman, 536 U.S. 181, 184-85 (2002). During the oral arguments for United States v. Nino amicus counsel for the Arizona Center for Disability Law and Judge Danny J. Boggs^[5] had a telling exchange regarding the proper procedure for the claim that Defendant is currently attempting to bring.^[6] Judge Boggs suggests that in a situation where a defendant believes that the Attorney General has violated the Rehabilitation Act with their choice of facility that the defendant would bring a civil habeas corpus action. Counsel notes that he would bring a civil action under the Rehabilitation Act or “the Olmstead decision.”^[7] Neither suggested that the proper procedure was to litigate this issue in the criminal case. While the Court is sympathetic to Defendant's position and reasoning as out-of-custody restoration is more economically efficient and appears to have proven effective at the state level, the remedy for this argument rests with the Attorney General, Congress, or in a different proceeding

         C. Policies ...