United States District Court, D. Arizona
Honorable James A. Soto United States District Judge.
before the Court is Defendant's Objection to Magistrate
Judge's Order of Commitment for Competency Restoration
Treatment (Doc. 89). 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.
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); 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).
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,  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.)
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.)
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.
18 U.S.C. § 4241(d) Is Unambiguous and Does Not
Provide the Court with Discretion.
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.
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.
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
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)).
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
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.
argues that mandatory custodial restoration violates the
Rehabilitation Act, 29 U.S.C. § 794,  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.
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.
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 had a telling exchange regarding the
proper procedure for the claim that Defendant is currently
attempting to bring. 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.” 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